Lacey Act Battle Heats Up on the Hill

Lacey Act Battle Heats Up on the HillWASHINGTON — A Congressional subcommittee heard arguments yesterday for and against changes to the Lacey Act by wood industry leaders, government agency officials and musicians.

The House Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs held a legislative hearing May 8 on two bills that would amend the 2008 Lacey Act: H.R. 3210, the “Retailers and Entertainers Lacey Implementation and Enforcement Fairness Act” (RELIEF Act), and H.R. 4171, the “Freedom from Over-Criminalization and Unjust Seizures Act of 2012” (FOCUS Act).

In 2008, Congress expanded the Lacey Act to include all plants and plant products. In addition, it expanded the realm of the Act to include all foreign regulations relating to plant and forestry issues.

Since then, a number of congressmen and others have come out in support of amending the Lacey Act. “The rushed changes in 2008 made for imperfect outcomes that need to be addressed,” Subcommittee Chairman John Fleming (R-LA) said in his opening remarks. “These amendments must be addressed before another person is unfairly prosecuted. This hearing is a good first step in finding ways to improve the law, while keeping its original intent of animal and plant protection intact,” he added in a separate statement.

Calling the Lacey Act “a frightening example of overcriminalization,” Sen. Rand Paul (R-KY), sponsor of the FOCUS Act, told the subcommittee the bill aims to “alter the Lacey Act by removing all references to ‘foreign law.’” Under his proposal, the FOCUS Act would also remove criminal penalties and instead institute a civil penalty system in which violations with a market value of less than $350 would face a maximum penalty of $10,000, with more severe violations subject to penalties up $200,000.

Stating, “The FOCUS Act makes a strong ideological statement but does nothing to protect musicians or other owners of pre-2008 products,” Rep. Jim Cooper (D-TN) promoted the benefits of the bipartisan RELIEF Act to the subcommittee. According to Cooper, the bill would re-establish the “innocent owner” defense, include a grandfather clause for items purchased prior to May 22, 2008 and “streamline the importation of legal goods.”

Voicing his group's support for Lacey Act reform, Barry Rutenberg, chairman of the board of the National Association of Home Builders, stated, “By deeming Lacey-violative wood and plant products ‘contraband,” innocent companies are left without legal standing to challenge a government taking in court. Coupled with requirements that the U.S. government enforce an almost limitless set of foreign laws, builders, and ultimately consumers, are left at great risk.”

Also speaking out on Tuesday in support of Lacey Act reform, specifically the RELIEF Act was musician Jeffrey Baxter, former guitarist for Steely Dan, Doobie Brothers and others. “I am not here to advocate overturning, eviscerating or weakening the Lacey Act. Rather, I think it could be made more effective and focused, while ensuring that law-abiding American musicians and American businesses can continue to create music and create jobs without fear of accidentally violating Lacey….The Lacey Act is a good piece of legislation, but let’s work to make it better.”

But opposing what they claim are attempts to “weaken the law” a group of musicians, forest products executives, current and former government officials spoke out against proposed changes in the FOCUS and RELIEF Acts, and in favor of retaining the Lacey Act in its current form.

Adam Gardner, frontman for the music group Guster and founder and co-director of the non-profit organization Reverb, noted, “The RELIEF Act’s provisions would remove almost all the key deterrents to illegal logging; those things that are really bringing about change on the ground and in the trade. They are so far reaching that they would completely undermine the law’s effectiveness in preventing deforestation as well as threaten U.S jobs by allowing cheap illegal imports to undercut local products.”

And, Gardner added, “H.R. 3210 only provides ‘relief’ to illegal loggers while leaving musicians and other consumers of wood products with burdensome doubt about the legality and sustainability of the wood products we use. By contrast, the Lacey Act provides comforting assurance to conscientious consumers like myself that the wood I am buying in my instruments or elsewhere is legally sound.”

“The Lacey Act is the perfect illustration of the U.S. leading by example, and having a very real and positive impact on the strength of local environmental protection laws in developing countries,” testified Rep. Earl Blumenauer (D-OR) at the hearing. “This is why the U.S. timber industry supports this law, and why major international conglomerates are actively opposing these laws; we are in a race to strengthen forest governance against those who thrive in a lawless setting.

“The RELIEF Act and the FOCUS Act would undermine this success,” Blumenauer added.

Added Mark Rey, former Undersecretary of Agriculture for National Resources and the Environment and representing Climate Advisors, “[An] important objective underlying the Lacey Act amendments was to level the playing field for legitimate American producers of forest products. We believe that the Lacey Act is meeting that objective, and that t he elimination of the violation of foreign laws as a basis for prosecution will threaten the enormous benefits of the Lacey Act.”

Donna Harman, president and CEO of the American Forest and Paper Assn., which represents wood products manufacturers, forest landowners, pulp, paper and packaging, noted that since the 2008 amendment to Lacey, the U.S. hardwood industry has seen a “pickup in demand” from domestic and foreign buyers. However, she said, further work needs to be done to the declaration requirements before it can be fully implemented and that adequate federal funding must be in place to ensure education and implementation of the act.

In addition, Harman stated, “AF&PA believes that the Lacey Act Amendments should not apply to plants and plant products manufactured or imported prior to the enactment of the amendments. We agree that it is unreasonable to expect importers to obtain complete supply chain information retroactive to pre-May 2008.”

Laurie Everill, compliance manager for IKEA North America and a member of the National Retail Federation and the Retail Industry Leaders Assn., also noted the need for Congress to “clarify the Lacey Act amendments to give businesses better guidance on which foreign laws and regulations may give rise to a violation, by specifying that applicable foreign laws and regulations be directed to the preservation or conservation of trees and plants….This change would also improve enforcement and compliance by directing efforts in ways that truly advance the policy objectives of the law.”

While recognizing the need for some change to the current Lacey Act, she stated, “The current bills in the House — Tennessee Congressman Cooper’s RELIEF Act and Georgia Congressman Broun’s FOCUS Act — have raised awareness of members of Congress and the public to the practical challenges related to the Lacey Act Amendments. However, neither of these bills would adequately address these challenges, and in order to be credible, any changes needs to be supported by the environmental community.”

Read additional testimony given before the subcommittee:

Statement from Rep. Paul Broun (R-GA)

Statement from Reed Rubinstein, partner at Dinsmore & Shohl LLP, U.S. Chamber of Commerce's Institute for Legal Reform

Eileen Sobeck, deputy assistant director for Fish and Wildlife Parks, Dept. of Interior

Kevin Shea, associate adminstrator, Animal and Plant Health Inspection Service, U.S. Dept. of Agriculture

Watch a video from the hearing by WZTV's John Dunn.


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