[House Report 112-604]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 112-604
======================================================================
RELIEF ACT
_______
July 17, 2012.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Hastings of Washington, from the Committee on Natural Resources,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3210]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (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,
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 ``Retailers and Entertainers Lacey
Implementation and Enforcement Fairness Act'' or the ``RELIEF Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Amendments to the Lacey Act Amendments of 1981 were
enacted as part of the Food, Conservation, and Energy Act of
2008 (Public Law 110-246).
(2) The 2008 amendments were intended to level the playing
field for American businesses engaged in the responsible
harvest, shipment, manufacture, and trade of plants and plant
products whose prices had been undercut by a black market
fueled by irresponsible and illegal taking of protected plants
around the globe.
(3) The 2008 amendments were overly broad and their
enforcement as enacted could criminalize actions of a good-
faith owner, purchaser, or retailer of a plant or plant
product, subjecting them to penalties that include forfeiture,
fines, and imprisonment.
(4) Sanctions for violating the 2008 amendments should be
proportional to the act in violation. An individual who is not
in the commercial shipping business should not be held to the
same standard of compliance under that Act.
(5) Individuals fear that they risk incurring those penalties
by merely owning or traveling with a vintage musical
instrument, antique furniture, or another wood product.
(6) The Department of the Interior and Department of Justice
have stated ``people who unknowingly possess a musical
instrument or other object containing wood that was illegally
taken, possessed, transported or sold in violation of law and
who, in the exercise of due care would not have known that it
was illegal, do not have criminal exposure.''.
(7) It is necessary to clarify the 2008 amendments so that
legally harvested new plant products can enter the market
place.
(8) Declaration requirements for plant products imported or
manufactured prior to May 22, 2008, are unreasonable since the
sourcing of plant products was not previously required by law.
(9) Federal law enforcement officials should not engage in
overzealous enforcement action under the 2008 amendments.
(10) It is important to ensure that the appropriate agencies
have the necessary funding to implement the current phases of
the declaration requirement before considering any future
phases.
(11) The appropriate agencies have the responsibility of
providing a publicly accessible database so that everyone can
be notified of the foreign laws of countries as they apply to
the importation of plants.
SEC. 3. TREATMENT OF PLANTS AND PLANT PRODUCTS UNDER LACEY ACT
AMENDMENTS OF 1981.
(a) Limitation on Application of Act to Certain Plants and Plant
Products.--The Lacey Act Amendments of 1981 (16 U.S.C. 3371 et seq.) is
amended by redesignating section 9 as section 10, and by inserting
after section 8 the following:
``SEC. 9. LIMITATION ON APPLICATION TO CERTAIN PLANTS AND PLANT
PRODUCTS.
``This Act does not apply with respect to--
``(1) any plant that was imported into the United States
before May 22, 2008; or
``(2) any finished plant or plant product the assembly and
processing of which was completed before May 22, 2008.''.
(b) Limitations on Application of Plant Declaration Requirement.--
Section 3(f) of such Act (16 U.S.C. 3372(f)) is amended--
(1) in paragraph (1), by inserting ``that is entered for
consumption (as that term is defined in part 141.0a of title
19, Code of Federal Regulations, as in effect on the date of
enactment of the Retailers and Entertainers Lacey
Implementation and Enforcement Fairness Act)'' after ``plant'';
and
(2) in paragraph (3)--
(A) by inserting ``(A)'' before ``Paragraphs (1)'';
and
(B) by adding at the end the following:
``(B)(i) In the case of a plant product that is derived from
a tree, a declaration under paragraph (1) or (2) is not
required to include information referred to in subparagraph
(A), (B), or (C) of that paragraph unless the plant product is
solid wood.
``(ii) The Administrator of the Animal and Plant Health
Inspection Service shall issue regulations that define the term
`solid wood' for purposes of this subparagraph.''.
(c) Application of Civil Forfeiture Laws.--Section 5(d) of such Act
(16 U.S.C. 3374(d)) is amended--
(1) by inserting ``(1)'' before ``Civil'';
(2) by inserting ``, except as provided in paragraphs (2) and
(3) of this subsection'' before the period at the end; and
(3) by adding at the end the following:
``(2) Subsection (d)(4) of section 983 of such chapter, and the
second sentence of subsection (a)(1)(F) of such section, shall not
apply to plants or plant products.
``(3) This section is the sole authority for civil seizure or
forfeiture actions alleging, or predicated upon, a violation of section
3.''.
SEC. 4. LIMITATION ON APPLICATION OF FOREIGN LAWS.
(a) Prohibited Acts.--Section 3(a) of such Act (16 U.S.C. 3372(a)) is
amended--
(1) in paragraph (2)(B), in clause (ii) and in clause (iii),
by striking ``foreign law'' and inserting ``foreign law that is
directed at the protection, conservation, and management of
plants''; and
(2) in paragraph (3)(B), in clause (ii) and in clause (iii),
by striking ``foreign law'' and inserting ``foreign law that is
directed at the protection, conservation, and management of
plants''.
(b) Civil Penalties.--Section 4(a)(1) of such Act (16 U.S.C.
3373(a)(1)) is amended by striking ``foreign law'' and inserting
``foreign law that is directed at the protection, conservation, and
management of plants''.
SEC. 5. REVIEW AND REPORT.
Section 3(f) of such Act (16 U.S.C. 3372(f)) is amended--
(1) in paragraph (4), by striking ``Not later than two years
after the date of enactment of this subsection,'' and inserting
``Not later than 180 days after the date of enactment of the
Retailers and Entertainers Lacey Implementation and Enforcement
Fairness Act,''; and
(2) in paragraph (5)--
(A) by striking ``Not later than 180 days after the
date on which the Secretary completes the review under
paragraph (4), the Secretary'' and inserting ``Not
later than 180 days after the date the Secretary
completes the review under paragraph (4), the Director
of the United States Fish and Wildlife Service'';
(B) by striking ``and'' after the semicolon at the
end of subparagraph (B);
(C) by striking the period at the end of subparagraph
(C) and inserting ``; and''; and
(D) by adding at the end the following:
``(D) an evaluation of the feasibility of creating
and maintaining a publicly available database of laws
of foreign countries from which plants are exported.''.
Purpose of the Bill
The purpose of H.R. 3210, as ordered reported, is 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.
Background and Need for Legislation
In 1900, Congress enacted legislation to support the
efforts of states to protect their resident wildlife. The law,
known as the Lacey Act, was designed to prevent hunters from
killing game in one state and escaping prosecution by moving it
across state lines. It accomplished that goal by criminalizing
both the delivery for shipment and the shipment of parts or
bodies of ``wild animals or birds'' killed in violation of a
state law. If convicted of violating of what became the first
federal law to address wildlife protection nationwide, the
maximum fine was $200 for those receiving ``such articles'' and
$500 for those who transport them.
In the past 112 years, the Lacey Act has been amended with
significant modifications in 1935, 1981 and 2008. In the 1935
amendments, the Act was expanded to include foreign laws which
in the case of fish and wildlife meant about 100 foreign
statutes. It defined entities covered by the Act to include
``person, firm, corporation or association,'' targeted
interstate shipments ``by any means whatsoever,'' covered
animals or birds ``captured, killed, taken, shipped,
transported, carried, purchased, sold or possessed'' in
violation of an underlying law and increased the maximum fine
to $1,000 and up to six months in jail.
In 1981, the Lacey Act was further amended to establish a
criminal penalty for those who knowingly committed an act
prohibited by the law and knew, or in the exercise of due care
should have known, of the illegal nature of the wildlife at
issue. It established the principle of ``strict liability''
which means that the government no longer has to prove that a
person knew of the Lacey Act prohibitions and intended to
violate them. Federal wildlife agents were also allowed to
carry firearms, make warrantless arrests for felony violations
and execute search and arrest warrants. The United States
became the first nation to ban the importation and sale of
illegally obtained timber and other plant products.
While never specifically debated in either the U.S. House
of Representatives or the U.S. Senate, significant
modifications to the Lacey Act were incorporated within Section
8204 of the 2008 Farm bill. Under the guise of the Lacey Act,
it is now unlawful to acquire, import, export, transport, sell,
receive, or purchase in interstate or foreign commerce any
plant, with some limited exceptions, taken in violation of the
laws of a state or any foreign law that protects plants. A
plant is specifically defined as ``any wild member of the plant
kingdom, including roots, seeds, parts, or products thereof,
and including trees from either natural or planted forest
stands.'' It is also unlawful for any person to submit
falsified documents related to any plant or plant product and
to import a covered item without filing an accompanying
declaration form that identifies the scientific name of the
plant, value of the importation, quantity of the plant and the
name of the country from which the plant was harvested.
A fundamental goal of this 2008 law was to stop the
importation of illegally harvested trees. The World Bank had
estimated that ``illegal logging costs governments
approximately $5 billion annually in lost royalties and an
additional $10 billion in lost revenues.'' One of the
cosponsors of the 2008 amendments, Senator Lamar Alexander of
Tennessee, discussed the economic impact of illegal timber
imports and stated that, ``It is estimated [this practice
results in] $1 billion a year in depressed prices and reduced
exports. It depresses prices $500 million to $700 million
annually. It means the people who play by the rules in the
United States are having money taken from them by criminals who
don't play by the rules in other countries.''
The 2008 amendments also tried to reaffirm the ``innocent
owner'' defense that was established in the Civil Asset
Forfeiture Reform Act of 2000 (CAFRA). This effort, which was
supported by the proponents of the bill, was ultimately
unsuccessful because products potentially in violation of the
Lacey Act are still considered ``contraband'' or otherwise
``illegal to possess'' by the Department of Justice. Therefore,
these items, which now include wood products, are treated the
same way as illegal drugs, stolen pieces of art or bald eagle
feathers. CAFRA makes it clear that ``no person may assert an
ownership interest under this subsection in contraband or other
property that it is illegal to possess.''
The 2008 amendments also did not overturn the 2005 decision
of the Ninth Circuit Court of the United States v. 144,774
Pounds of Blue King Crab case. In that case, the court found
that ``King crab taken in violation of Russian fishing
regulations is subject to forfeiture under the Lacey Act.'' The
court went on to say that ``although the language of CAFRA is
ambiguous with regard to the definition of contraband, we need
not resolve this issue because if the crab at issue here was
imported, received, or acquired in violation of the Lacey Act,
it constitutes `property that is illegal to possess.'''
With the expanded Lacey Act definition to include all plant
and plant products, thousands of American businesses who had
little exposure to the Lacey Act have now become part of the
regulated community. This would include musical instrument
makers, furniture manufacturers, flooring companies, toy
manufacturers, the auto industry, boat builders, and textile
manufacturers. These companies must now comply with not only
all federal, state and tribal laws but thousands of foreign
laws, regulations, resolutions, decrees and ``other such
legally binding provisions that foreign governments may
promulgate.'' This is despite the fact that there is no
database of these laws and no one in the federal government who
can conclusively state how many ``foreign laws'' were triggered
by the 2008 amendments.
During the public hearing on H.R. 3210, the Deputy
Assistant Secretary for Fish and Wildlife and Parks within the
Department of the Interior was asked how many foreign laws were
triggered by the 2008 amendments. Her response was that ``I
don't have that number. We don't know the exact number of laws
that are triggered.'' In addition, she was asked if there was a
clearinghouse or Web site with this information where one can
go to a single Web site. Her response was ``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.''
Furthermore, according to the Congressional Research
Service, ``the 2008 Amendments allow enforcement of foreign
laws that are not directly related to conservation or U.S.
jobs, such as failure to pay foreign stumpage fees, or shipping
wood in violation of a country's export restrictions.''
The Animal and Plant Health Inspection Service (APHIS) has,
because of the complexity of obtaining and filing the necessary
information, been careful in implementing the new declaration
requirement of the 2008 amendments. APHIS has issued
regulations covering 24 of what may end up being 24,000
categories of products listed on the Harmonized Tariff Schedule
Codes that will be covered by the Lacey Act. Even with this
limited number, APHIS is receiving 40,000 declaration forms
each month and it has calculated that it is costing the
regulated community some $56 million to comply with this
requirement. When fully implemented, the agency believes it
could receive up to 1 million documents a month at an estimated
cost in excess of $500 billion annually.
As part of the 2008 amendments, APHIS was directed to
submit a report to the Congress by November 22, 2010, on the
effectiveness of the declaration document and to provide any
suggested improvements to the Act. Regrettably, this report is
now nearly two years overdue, and the Committee urges the
agency to transmit its findings to Congress at its earliest
convenience.
In an effort to correct some unintended aspects of the 2008
amendments that are hurting U.S. businesses and costing jobs,
H.R. 3210, the Retailers and Entertainers Lacey Implementation
and Enforcement Fairness (RELIEF) Act was introduced by
Congressman Jim Cooper (D-TN) and Congresswoman Marsha
Blackburn (R-TN). The major provisions of this bill, as
introduced, are to reestablish an ``innocent owner'' defense
under the Civil Asset Forfeiture Reform Act; limit the
declaration requirement to solid wood items and direct the
Administrator of APHIS to define the term ``solid wood'';
reduce the penalties for first time violations of the Lacey
Act; direct the U.S. Fish and Wildlife Service to evaluate the
feasibility of creating and maintaining a public database of
all foreign laws; require the issuance of regulations on the
creation of a product certification process; require the
Federal Trade Commission to complete a report on the
competitiveness in the domestic market for raw materials used
in the manufacture of musical instruments; and exempt from the
Lacey Act any plant imported into the United States prior to
May 22, 2008, or plant product assembled and processed before
that date.
During Full Committee consideration of the bill, the
Committee adopted an amendment offered by Congressman John
Fleming (R-LA) that modified one provision of the legislation,
added a new provision on foreign law application and deleted
four sections of the underlying bill.
Specifically, the reported bill would restore the
``innocent owner'' defense by declaring that in all civil asset
forfeiture cases under the Lacey Act, the suspected products
are not immediately deemed contraband or illegal to possess.
The burden will remain with the claimant, and the language has
no effect on criminal investigations or efforts to bring felony
charges against a defendant who is accused of trafficking in
illegal wood under the Lacey Act. It simply allows an
individual to have his day in court to prove he acted with
``due care,'' which is defined as ``that degree of care at
which a reasonable prudent person could exercise under the same
or similar circumstances.''
Second, H.R. 3210 as reported simply states that the Lacey
Act would not apply to any plant imported and any finished
plant or plant products that were assembled and processed prior
to May 22, 2008--the effective date of the 2008 amendments.
Despite the fact that over four years have passed, there has
been no attempt to clarify this issue through the regulatory
process. As a result, there remains a significant risk to
individuals and companies who may have products, like guitars
made with exotic woods, seized by the federal government. This
provision, which is broadly supported, will statutorily solve
this issue.
Third, the measure would restrict the application of a
``foreign law'' to those ``directed at the protection,
conservation and management of plants.'' This is a simple
clarification of an existing practice. The Fish and Wildlife
Service has stated that ``the Service has traditionally pursued
investigations under the wildlife trafficking provisions of the
Lacey Act only in circumstances where the underlying law
(whether foreign, federal, state or tribal) on which Lacey Act
charges are predicated is directly related to the protection,
conservation and management of fish or wildlife. The agency
takes the same approach in implementing its enforcement
responsibilities with respect to plants protected under foreign
law.''
Fourth, despite the questionable value of the documents,
the RELIEF Act does not call for the elimination of
declarations but does limit their application to ``solid wood''
products. During Subcommittee consideration of H.R. 3210,
opponents of the legislation repeatedly stated that this would
result in a ``tiny'' number of additional documents being
filed. Like much of the criticism of this bill, those comments
are unfounded. In fact, APHIS has submitted a document to the
Committee indicating that the number of documents as a result
of the legislation would grow from 40,000 a month to 330,000
declarations per month. While the agency was unable to quantify
the financial impact of these increased documents, it is
difficult to objectively argue that an eight-fold increase in
the number of filed documents is a ``tiny'' amount.
In addition, the comments of the Customs and Border
Protection (CBP) agency on the importance of the declaration
documents are telling. In a document provided to the Committee,
the following conclusion appears:
As stated previously, CBP supports the overall goal
of combating illegal logging; as such, it is
exceptionally onerous to require information from the
trade that may be beyond their ability to collect, when
such data collection seems to provide no useful
purpose. For the stated purpose of suppression of
illegal foreign logging, an importers' detailed
knowledge of the genus/species of wood products have no
logical nexus. If wood products are illegally
harvested, then genus/species is wholly immaterial.
Finally, the federal government would be required to
evaluate the feasibility of creating and maintaining a publicly
available database of the laws of foreign countries relating to
plant and plant products. If we are going to send an American
citizen to prison for violating a law enacted by one of the 193
nations recognized by the United Nations, then at least there
should be some public document containing a list of those
foreign laws that he should not violate.
Despite unfounded rhetoric from the opponents of these
modest changes, there is nothing in H.R. 3210, as amended,
which in any way overturns, weakens or eviscerates the Lacey
Act. This legislation does not affect any ongoing Lacey Act
investigations and will not stop or hamper any efforts by the
law enforcement community to arrest and prosecute those
individuals or companies who engage in the trafficking of
illegal harvested trees or products made from illegal wood. It
will encourage sound business practices, save thousands of
American jobs and most importantly, allow the federal
government to focus on shutting down the crime syndicates that
are the heart of illegal logging worldwide. The RELIEF Act is a
modest effort to correct some unintended consequences of the
changes made to the Lacey Act in 2008.
It is for this reason that the bill is supported by the
American Association of Exporters and Importers, American Home
Furnishings Alliance, Express Association of America, The
Hosiery Association, International Wood Products Association,
National Home Builders, the National Association of
Manufacturers, the National Association of Music Merchants,
National Songwriters Association, National Lumber and Building
Materials, National Marine Manufacturers Association, National
Retail Federation, Recreational Vehicle Industry Association,
U.S. Chamber of Commerce, and Window and Door Manufacturers
Association. These organizations represent small and large
businesses employing millions of Americans that provide
trillions of dollars in goods and services to the U.S. annual
Gross National Product.
Committee Action
H.R. 3210 was introduced on October 14, 2011, by
Congressman Jim Cooper (D-TN). The bill was referred to the
Committee on Natural Resources, and within the Committee to the
Subcommittee on Fisheries, Wildlife, Oceans, and Insular
Affairs. On May 8, 2012, the Subcommittee held a hearing on the
bill. On June 7, 2012, the Full Natural Resources Committee met
to consider the bill. The Subcommittee on Fisheries, Wildlife,
Oceans, and Insular Affairs was discharged by unanimous
consent. Congressman John Fleming (R-LA) offered amendment
designated .001; the amendment was adopted by voice vote.
Congressman Edward Markey (D-MA) offered an amendment to the
bill; the amendment was not adopted by a rollcall vote of 19 to
24, as follows:
Congressman John Garamendi offered amendment designated
.002 to the bill; the amendment was not adopted by a rollcall
vote of 18 to 25, as follows:
The bill, as amended, was then adopted and ordered
favorably reported to the House of Representatives by a
rollcall vote of 25 to 19, as follows:
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.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(1) 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)(2)(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. 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. 3210--RELIEF Act
CBO estimates that implementing H.R. 3210 would have no
significant impact on the federal budget. Enacting the
legislation could reduce revenues from civil penalties
collected under the Lacey Act (a law that prohibits trade in
wildlife, fish, and plants that have been illegally taken,
possessed, transported, or sold); thus, pay-as-you-go
procedures apply. However, CBO estimates that any such
reduction would be minimal. Enacting the bill would not affect
direct spending.
H.R. 3210 would amend the Lacey Act to make it legal to
possess certain plants that were imported and certain plant
products that were produced prior to May 22, 2008. The bill
also would exempt individuals from having to declare certain
imported plant and tree products. Finally, the bill would
require the U.S. Fish and Wildlife Service (USFWS) to evaluate
certain enforcement procedures under the Lacey Act and report
its findings to the Congress.
Based on information provided by the USFWS, CBO estimates
that implementing the bill would have no significant impact on
the agency's workload because it would not significantly change
the way the agency enforces the Lacey Act. In addition, because
the agency focuses its enforcement efforts on commercial
trafficking and illegal logging, CBO estimates that reducing
the number of plant products that are illegal to possess under
the Lacey Act would have a minimal effect on the amount of
civil penalties collected under the act.
H.R. 3210 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Jeff LaFave. The
estimate was approved by Peter H. Fontaine, Assistant Director
for Budget Analysis.
2. Section 308(a) of 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. CBO estimates that
implementing H.R. 3210 would have no significant impact on the
federal budget. Enacting the legislation could reduce revenues
from civil penalties collected under the Lacey Act (a law that
prohibits trade in wildlife, fish, and plants that have been
illegally taken, possessed, transported, or sold); thus, pay-
as-you-go procedures apply. However, CBO estimates that any
such reduction would be minimal. Enacting the bill would not
affect direct spending.
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, as ordered reported, is 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.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
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. 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--
(i) * * *
(ii) taken, possessed, transported,
or sold without the payment of
appropriate royalties, taxes, or
stumpage fees required for the plant by
any law or regulation of any State or
any [foreign law] foreign law that is
directed at the protection,
conservation, and management of plants;
or
(iii) taken, possessed, transported,
or sold in violation of any limitation
under any law or regulation of any
State, or under any [foreign law]
foreign law that is directed at the
protection, conservation, and
management of plants, governing the
export or transshipment of plants; 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--
(i) * * *
(ii) taken, possessed, transported,
or sold without the payment of
appropriate royalties, taxes, or
stumpage fees required for the plant by
any law or regulation of any State or
any [foreign law] foreign law that is
directed at the protection,
conservation, and management of plants;
or
(iii) taken, possessed, transported,
or sold in violation of any limitation
under any law or regulation of any
State, or under any [foreign law]
foreign law that is directed at the
protection, conservation, and
management of plants, governing the
export or transshipment of plants; or
* * * * * * *
(f) Plant Declarations.--
(1) Import declaration.--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 that is entered for
consumption (as that term is defined in part 141.0a of
title 19, Code of Federal Regulations, as in effect on
the date of enactment of the Retailers and Entertainers
Lacey Implementation and Enforcement Fairness Act)
unless the person files upon importation a declaration
that contains--
(A) * * *
* * * * * * *
(3) Exclusions.--(A) 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.
(B)(i) In the case of a plant product that is derived
from a tree, a declaration under paragraph (1) or (2)
is not required to include information referred to in
subparagraph (A), (B), or (C) of that paragraph unless
the plant product is solid wood.
(ii) The Administrator of the Animal and Plant Health
Inspection Service shall issue regulations that define
the term ``solid wood'' for purposes of this
subparagraph.
(4) Review.--[Not later than two years after the date
of enactment of this subsection,] Not later than 180
days after the date of enactment of the Retailers and
Entertainers Lacey Implementation and Enforcement
Fairness Act, the Secretary shall review the
implementation of each requirement imposed by
paragraphs (1) and (2) and the effect of the exclusion
provided by paragraph (3). In conducting the review,
the Secretary shall provide public notice and an
opportunity for comment.
(5) Report.--[Not later than 180 days after the date
on which the Secretary completes the review under
paragraph (4), the Secretary] Not later than 180 days
after the date the Secretary completes the review under
paragraph (4), the Director of the United States Fish
and Wildlife Service shall submit to the appropriate
committees of Congress a report containing--
(A) * * *
(B) 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
this section; [and]
(C) an analysis of the effect of subsection
(a) and this subsection on--
(i) * * *
(ii) the extent and methodology of
illegal logging practices and
trafficking[.]; and
(D) an evaluation of the feasibility of
creating and maintaining a publicly available
database of laws of foreign countries from
which plants are exported.
* * * * * * *
SEC. 4. PENALTIES AND SANCTIONS.
(a) Civil Penalties.--
(1) Any person who engages in conduct prohibited by
any provision of this Act (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, and any person
who knowingly violates subsection (d) or (f) of section
3, 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] foreign law that is directed at the
protection, conservation, and management of plants, 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, or
$10,000, whichever is less.
* * * * * * *
SEC. 5. FORFEITURE.
(a) * * *
* * * * * * *
(d) Civil Forfeitures.--(1) Civil forfeitures under this
section shall be governed by the provisions of chapter 46 of
title 18, United States Code, except as provided in paragraphs
(2) and (3) of this subsection.
(2) Subsection (d)(4) of section 983 of such chapter, and the
second sentence of subsection (a)(1)(F) of such section, shall
not apply to plants or plant products.
(3) This section is the sole authority for civil seizure or
forfeiture actions alleging, or predicated upon, a violation of
section 3.
* * * * * * *
SEC. 9. LIMITATION ON APPLICATION TO CERTAIN PLANTS AND PLANT PRODUCTS.
This Act does not apply with respect to--
(1) any plant that was imported into the United
States before May 22, 2008; or
(2) any finished plant or plant product the assembly
and processing of which was completed before May 22,
2008.
SEC. [9.] 10. MISCELLANEOUS PROVISIONS.
(a) * * *
* * * * * * *
DISSENTING VIEWS
The Lacey Act is our nation's oldest federal law protecting
wildlife and has a long history of bipartisan support. The
Lacey Act is considered America's premier conservation statute
because it protects a broader array of wildlife and plants than
any other law. The Act includes provisions that ban the
importation or sale of any species obtained in violation of
state, tribal, or foreign law. It also prevents `injurious'
species from being imported or sold in the U.S. Injurious
species are mammals, birds, amphibians, reptiles, fish,
crustaceans, mollusks, plants and their offspring that are
harmful to the interests of human beings, agriculture,
horticulture, forestry, wildlife or wildlife resources of the
United States.
The Lacey Act is critical to our nation's economy because
it prevents ``black market'' products from undercutting U.S.
industries. For example, the Lacey Act 2008 amendments are
designed to decrease the amount of illegally-harvested wood on
the global market. In 2006, our trade deficit to China for
forest products was $20.6 billion. In 2010, we achieved a $600
million surplus. Experts attribute much of this increase to the
2008 amendments. Further, illegal logging activities are
inextricably linked to organized, illegal trafficking of
narcotics, weapons, and people and the 2008 Lacey Act
amendments are a strong deterrent to criminals.
H.R. 3210, the so-called RELIEF Act, seeks to roll back the
2008 Lacey Act amendments by limiting the universe of foreign
laws that could trigger a violation of Lacey, thus inviting
organized crime to gravitate toward illegal logging. H.R. 3210
would also exempt all products not classified as ``solid wood''
from import declaration requirements, removing an important
protection for our domestic pulp and paper industry, and would
allow people and companies to retain illegally harvested,
imported, or stolen wood or other plant products. Finally, H.R.
3210 would ``grandfather'' any plant products assembled or
imported before the 2008 amendments, creating a massive
loophole that criminals will exploit.
Contrary to the claim that the music industry supports H.R.
3210 because musicians are afraid of having their instruments
confiscated, a host of high-profile musicians signed a pledge
supporting the Lacey Act as it is currently written and
opposing any attempt to weaken it. This includes Willie Nelson,
David Crosby, Bonnie Raitt, Mick Jagger, the Dave Matthews
Band, and Sting, among others. Additionally, a coalition of
over thirty conservation groups, including the League of
Conservation Voters, the National Wildlife Federation, and the
Nature Conservancy wrote members of Congress urging them not to
pass H.R. 3210.
Further, the U.S. forest products industry sent a letter to
Congress on June 6th opposing H.R. 3210. The letter stated that
the industry produces approximately $175 billion in products
annually, employs nearly 900,000 men and women in good paying
jobs, and is among the top 10 manufacturing sector employers in
47 states. Additionally, an industry study prior to passage of
the 2008 Lacey Act amendments estimated that illegal logging
cost the U.S. forest products industry some $1 billion annually
in lost export opportunities and depressed U.S. wood prices.
Even after being amended in committee to remove the
reduction in civil penalties contemplated in the original bill,
H.R. 3210 is bad for the environment, bad for national
security, and bad for U.S. jobs. Ranking Member Markey offered
an amendment to prohibit H.R. 3210 from applying to plant
products from any country identified by the State department as
having significant trade in illegal drug materials, poor
records on human trafficking, or that qualified as state
sponsors of terrorism. This amendment had bipartisan support,
but was defeated. Similarly, Representative Garamendi offered
an amendment to bar H.R. 3210 from taking effect if the
Secretary of the Interior, in consultation with the Governors
of timber producing states, certified that the law would have a
negative effect on the U.S. timber industry; the Majority also
defeated that amendment.
While H.R. 3210 passed out of committee, there was
bipartisan opposition, and not a single Democratic member voted
for its passage. Without appropriate safeguards for our
domestic industries or our public safety, H.R. 3210 does much
more harm than good. The 2008 Lacey Act amendments are working
to conserve plant species and reduce illegal logging worldwide
and to give our timber producers a level playing field. For
these reasons, we oppose H.R. 3210 as reported.
Edward J. Markey.
Raul M. Grijalva.
Peter A. DeFazio.
Grace F. Napolitano.
Paul Tonko.
Rush D. Holt.
John Garamendi.