```

[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

 
                H.R. 3210, ``RETAILERS AND ENTERTAINERS

                       LACEY IMPLEMENTATION AND

                    ENFORCEMENT FAIRNESS ACT'' AND

       H.R. 4171, ``FREEDOM FROM OVER-CRIMINALIZATION AND UNJUST

                        SEIZURES ACT OF 2012''
=======================================================================

                           LEGISLATIVE HEARING

                               before the

                  SUBCOMMITTEE ON FISHERIES, WILDLIFE,

                       OCEANS AND INSULAR AFFAIRS

                                 of the

                     COMMITTEE ON NATURAL RESOURCES

                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                          Tuesday, May 8, 2012

                               __________

                           Serial No. 112-109

                               __________

       Printed for the use of the Committee on Natural Resources

         Available via the World Wide Web: http://www.fdsys.gov
                                   or
          Committee address: http://naturalresources.house.gov

                  U.S. GOVERNMENT PRINTING OFFICE
74-144                    WASHINGTON : 2013
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001

                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
             EDWARD J. MARKEY, MA, Ranking Democrat Member

Don Young, AK                        Dale E. Kildee, MI
John J. Duncan, Jr., TN              Peter A. DeFazio, OR
Louie Gohmert, TX                    Eni F.H. Faleomavaega, AS
Rob Bishop, UT                       Frank Pallone, Jr., NJ
Doug Lamborn, CO                     Grace F. Napolitano, CA
Robert J. Wittman, VA                Rush D. Holt, NJ
Paul C. Broun, GA                    Raul M. Grijalva, AZ
John Fleming, LA                     Madeleine Z. Bordallo, GU
Mike Coffman, CO                     Jim Costa, CA
Tom McClintock, CA                   Dan Boren, OK
Glenn Thompson, PA                   Gregorio Kilili Camacho Sablan, 
Jeff Denham, CA                          CNMI
Dan Benishek, MI                     Martin Heinrich, NM
David Rivera, FL                     Ben Ray Lujan, NM
Jeff Duncan, SC                      Betty Sutton, OH
Scott R. Tipton, CO                  Niki Tsongas, MA
Paul A. Gosar, AZ                    Pedro R. Pierluisi, PR
Raul R. Labrador, ID                 John Garamendi, CA
Kristi L. Noem, SD                   Colleen W. Hanabusa, HI
Steve Southerland II, FL             Paul Tonko, NY
Bill Flores, TX                      Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
Jon Runyan, NJ
Bill Johnson, OH
Mark Amodei, NV

                       Todd Young, Chief of Staff
                      Lisa Pittman, Chief Counsel
                Jeffrey Duncan, Democrat Staff Director
                 David Watkins, Democrat Chief Counsel
                                 ------                                

              SUBCOMMITTEE ON FISHERIES, WILDLIFE, OCEANS
                          AND INSULAR AFFAIRS

                       JOHN FLEMING, LA, Chairman
     GREGORIO KILILI CAMACHO SABLAN, CNMI, Ranking Democrat Member

Don Young, AK                        Eni F.H. Faleomavaega, AS
Robert J. Wittman, VA                Frank Pallone, Jr., NJ
Jeff Duncan, SC                      Madeleine Z. Bordallo, GU
Steve Southerland, II, FL            Pedro R. Pierluisi, PR
Bill Flores, TX                      Colleen W. Hanabusa, HI
Andy Harris, MD                      Vacancy
Jeffrey M. Landry, LA                Edward J. Markey, MA, ex officio
Jon Runyan, NJ
Doc Hastings, WA, ex officio

                                 ------                                
                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, May 8, 2012.............................     1

Statement of Members:
    Fleming, Hon. John, a Representative in Congress from the 
      State of Louisiana.........................................     1
        Prepared statement of....................................     2
    Markey, Hon. Edward J., a Representative in Congress from the 
      State of Massachusetts.....................................     5
        Prepared statement of....................................     7
    Sablan, Hon. Gregorio, a Delegate in Congress from the 
      Commonwealth of the Northern Mariana Islands...............     3
        Prepared statement of....................................     4

Statement of Witnesses:
    Baxter, Jeffrey, Musician/Producer, Former Member of Steely 
      Dan and the Doobie Brothers, and Advisor to D.O.D. and 
      I.C., Former Chair of the Advisory Board for Ballistic 
      Missile Defense............................................    21
        Prepared statement on H.R. 3210..........................    23
    Blumenauer, Hon. Earl, a Representative in Congress from the 
      State of Oregon, Oral statement on H.R. 3210...............    15
    Broun, Hon. Paul C., a Representative in Congress from the 
      State of Georgia...........................................    17
        Prepared statement on H.R. 4171..........................    18
    Cooper, Hon. Jim, a Representative in Congress from the State 
      of Tennessee...............................................    12
        Prepared statement on H.R. 3210..........................    13
    Everill, Laurie, Regional Customs Compliance and Operations 
      Manager, IKEA--North America...............................    29
        Prepared statement on H.R. 3210..........................    31
    Gardner, Adam, Frontman of Guster, Founder and Co-Director of 
      Reverb.....................................................    44
        Prepared statement on H.R. 3210 and H.R. 4171............    46
    Harman, Donna A., President and Chief Executive Officer, 
      American Forest and Paper Association......................    33
        Prepared statement on H.R. 3210..........................    35
    Paul, Hon. Rand, a U.S. Senator from the State of Kentucky...     8
        Prepared statement on S. 2062............................     9
    Rey, Hon. Mark, Climate Advisors.............................    39
        Prepared statement on H.R. 3210 and H.R. 4171............    42
    Rubinstein, Reed D., Esq., Partner, Dinsmore & Shohl, LLP, 
      U.S. Chamber of Commerce's Institute for Legal Reform......    48
        Prepared statement on H.R. 3210 and H.R. 4171............    50
    Rutenberg, Barry, Chairman of the Board, National Association 
      of Home Builders...........................................    25
        Prepared statement on H.R. 3210..........................    27
    Shea, Kevin, Associate Administrator, Animal and Plant Health 
      Inspection Service, U.S. Department of Agriculture.........    71
        Prepared statement on H.R. 3210 and H.R. 4171............    72
    Sobeck, Eileen, Deputy Assistant Secretary for Fish and 
      Wildlife and Parks, U.S. Department of the Interior........    63
        Prepared statement on H.R. 3210 and H.R. 4171............    65

Additional materials supplied:
    Association of Fish and Wildlife Agencies, Statement 
      submitted for the record on H.R. 4171......................    78
    Canadian Manufacturers & Exporters and the Canadian 
      Manufacturing Coalition, Letter submitted for the record on 
      H.R. 3210 and H.R. 4171....................................    79
    National Association of Conservation Law Enforcement Chiefs, 
      Letter submitted for the record on H.R. 4171...............    81
    National Association of State Boating Law Administrators, 
      Statement submitted for the record on H.R. 4171............    83
    Northeast Conservation Law Enforcement Chiefs Association, 
      Letter submitted for the record on H.R. 4171...............    84
    Reverb, Statement submitted for the record...................     6
    Scarlett, Lynn, Former Deputy Secretary, U.S. Department of 
      the Interior, Statement submitted for the record...........    39

                                  (IV)
                                     

LLEGISLATIVE HEARING ON H.R. 3210, TO AMEND THE LACEY ACT 
        AMENDMENTS OF 1981 TO LIMIT THE APPLICATION OF THAT ACT 
        WITH RESPECT TO PLANTS AND PLANT PRODUCTS THAT WERE 
        IMPORTED BEFORE THE EFFECTIVE DATE OF AMENDMENTS TO 
        THAT ACT ENACTED IN 2008, AND FOR OTHER PURPOSES. 
        ``RETAILERS AND ENTERTAINERS LACEY IMPLEMENTATION AND 
        ENFORCEMENT FAIRNESS ACT''; AND H.R. 4171, TO AMEND THE 
        LACEY ACT AMENDMENTS OF 1981 TO REPEAL CERTAIN 
        PROVISIONS RELATING TO CRIMINAL PENALTIES AND 
        VIOLATIONS OF FOREIGN LAWS, AND FOR OTHER PURPOSES. 
        ``FREEDOM FROM OVER-CRIMINALIZATION AND UNJUST SEIZURES 
        ACT OF 2012.''
                              ----------                              

                          Tuesday, May 8, 2012

                     U.S. House of Representatives

    Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Subcommittee met, pursuant to call, at 1:02 p.m., in 
Room 1324, Longworth House Office Building, Hon. John Fleming 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Fleming, Duncan, Harris, Sablan, 
Faleomavaega, and Markey (ex officio).
    Dr. Fleming. The Subcommittee will come to order. The 
Chairman notes the presence of a quorum. Good afternoon.

    STATEMENT OF THE HON. JOHN FLEMING, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF LOUISIANA

    Dr. Fleming. Today the Subcommittee will conduct a 
legislative hearing on two bills that amend the Lacey Act. As a 
result of amendments enacted in 2008, the impact of this law 
was significantly expanded to include for the first time 
thousands of American companies that trade in wood and wood 
products.
    The first bill, H.R. 3210, the Retailers and Entertainers 
Lacey Implementation and Enforcement Fairness Act, or RELIEF 
Act, was introduced by our distinguished colleague, Congressman 
Jim Cooper of Tennessee. The purposes of this proposal are to 
exempt any plant or finished plant product imported or 
completed before May 22, 2008, to limit the declaration 
requirement to solid wood and items imported only for commerce 
and provide an innocent owner defense to individuals under the 
Civil Assets Forfeiture Reform Act. At the time of 
introduction, this legislation was endorsed by an impressive 
list of organizations, including the National Association of 
Home Builders, the National Retail Federation, the 
International Wood Products Association, the National 
Association of Manufacturers, National Association of Music 
Merchants, National Audubon Society, the National Federation of 
Independent Business, National Marine Manufacturers 
Association, and the U.S. Chamber of Commerce.
    The second bill we will hear is the Freedom from Over-
Criminalization and Unjust Seizures Act as introduced by 
Senator Rand Paul of Kentucky and Congressman Paul Broun of 
Georgia. This bill would remove all references to foreign laws 
in the Lacey Act, and it reduces the penalty provisions under 
the Act. One of the organizations that supports this 
legislation is the Heritage Foundation, which recently stated 
in an article that, ``It is a Federal offense to import fish, 
wildlife or plants in violation of any foreign law. Such 
legislation violates one of the fundamental tenets of Anglo-
American American law that 'men of common intelligence' must be 
able to understand what a law means. No one should be forced to 
run the risk of conviction and imprisonment for making a 
mistake under a foreign law.''
    The rushed changes in 2008 made for imperfect outcomes that 
need to be addressed. This is the purpose of a congressional 
hearing. What is disappointing is that the same environmental 
organizations that don't want even a comma changed in this law 
have consistently opposed any logging in this country. Today we 
will hear reasons why changes may be needed to address the 
legal jeopardy that Americans may face as a direct result of 
the 2008 amendments.
    During this hearing I am interested in learning what is the 
cost and value of the declaration requirement, why all 
suspected Lacey Act products are treated as contraband, and why 
in the case of the 2008 amendments, Americans must comply with 
the thousands of foreign laws, some of which may have little, 
if anything, to do with the protection, conservation, and 
management of plants.
    [The prepared statement of Dr. Fleming follows:]

          Statement of The Honorable John Fleming, Chairman, 
    Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs

    Good afternoon, today, the Subcommittee will conduct a legislative 
hearing on two bills that amend the Lacey Act. As a result of 
Amendments enacted in 2008, the impact of this law was significantly 
expanded to include for the first-time thousands of American companies 
that trade in wood and wood products.
    The first bill, H.R. 3210, the Retailers and Entertainers Lacey 
Implementation and Enforcement Fairness Act or RELIEF Act was 
introduced by our distinguished colleague Congressman Jim Cooper of 
Tennessee. The purposes of this proposal are to exempt any plant or 
finished plant product imported or completed before May 22, 2008, to 
limit the Declaration requirement to solid wood and items imported only 
for commerce and provide an ``innocent owner'' defense to individuals 
under the Civil Assets Forfeiture Reform Act.
    At the time of introduction, this legislation was endorsed by an 
impressive list of organizations including the National Association of 
Home Builders, the National Retail Federation, the International Wood 
Products Association, the National Association of Manufacturers, 
National Association of Music Merchants, National Audubon Society, the 
National Federation of Independent Business, National Marine 
Manufacturers Association and the U.S. Chamber of Commerce.
    The second bill we will hear is the Freedom From Over-
Criminalization and Unjust Seizures Act as introduced by Senator Rand 
Paul of Kentucky and Congressman Paul Broun of Georgia. This bill would 
remove all references to foreign laws in the Lacey Act and it reduces 
the penalty provisions under the Act.
    One of the organizations that support this legislation is the 
Heritage Foundation which recently stated in an article that ``It is a 
federal offense to import fish, wildlife, or plants in violation of any 
foreign law. Such legislation violates one of the fundamental tenets of 
Anglo-American common law: that ``men of common intelligence'' must be 
able to understand what a law means. No one should be forced to run the 
risk of conviction and imprisonment for making a mistake under a 
foreign law.''
    The rushed changes in 2008 made for imperfect outcomes that need to 
be addressed. This is the purpose of a Congressional hearing. What is 
disappointing is that the same environmental organizations that don't 
want even a comma changed in this law, have consistently opposed any 
logging in this country. Today, we will hear reasons why changes may be 
needed to address the legal jeopardy that Americans may face as a 
direct result of the 2008 Amendments.
    During this hearing, I am interested in learning what is the cost 
and value of the Declaration requirement, why all suspected Lacey Act 
products are treated as contraband and why in the case of the 2008 
Amendments Americans must comply with the thousands of foreign laws, 
some of which, may have little, if anything, to do with the protection, 
conservation and management of plants.
    I now recognize the Ranking Minority Member for any statement he 
would like to make at this time.
                                 ______
                                 
    Dr. Fleming. I now recognize the Ranking Minority Member 
for any statement that he would like to make at this time.

    STATEMENT OF THE HON. GREGORIO KILILI CAMACHO SABLAN, A 
DELEGATE IN CONGRESS FROM THE TERRITORY OF THE NORTHERN MARIANA 
                            ISLANDS

    Mr. Sablan. Thank you very much, Mr. Chairman, and welcome 
to all our guests, the Senator and my colleagues here in the 
House.
    Today we will discuss our most comprehensive Federal law to 
combat wildlife crime, the Lacey Act. This 100-year-old law is 
one of our most powerful protections we have for our natural 
resources in the United States and the most powerful tool we 
have for preserving important wildlife and habitat abroad. 
Wildlife like tigers, rhinos, and apes capture the human 
imagination, yet they face multiple threats around the world. 
Although these animals are not native to the United States, 
Americans have repeatedly supported measures to invest in 
protecting these iconic species in their natural habitat.
    For example, we recently held a bipartisan hearing in this 
Subcommittee that examined the reauthorization of the 
multinational species conservation funds. While these grants 
play an integral part in species protection, the global trade 
in illegal wildlife is estimated to be worth at least $5 
billion annually. The minimal civil penalties recommended in 
H.R. 4175 would not deter the organized crime syndicates 
selling wildlife in the black market. Congress recognized in 
the early 1980s that the Lacey Act required criminal 
enforcement to provide wildlife--effective wildlife protection, 
and this remains true today.
    Over the last decade, it became clear that vulnerable 
species were not going to recover as long as their habitats 
continued to be destroyed. The 2008 amendments to the Lacey Act 
addressed this deficiency by making it illegal to import 
illegally logged wood, thus protecting the trees in the forest 
where these animals live. However, these provisions not only 
preserve wildlife, they also protect people and their jobs. The 
loss of forest resources have been found to directly affect the 
livelihood of 90 percent of the 1.2 billion people living in 
extreme poverty worldwide. The Lacey Act has helped reduce 
illegal logging by at least 22 percent globally with reductions 
as high as 50 to 70 percent in some key countries.
    Illegal logging also affects domestic jobs. Prior to 
passage of the 2008 amendments, timber and wood industries in 
the United States were forced to compete with countries that 
illegally log in national parks, avoided duties and taxes, and 
pay little or nothing for raw materials. These unfair practices 
can cost U.S. logging industries up to a billion dollars a year 
which directly translates to a decrease in American jobs.
    There have been challenges in implementing these new 
provisions, and we must make sure the agencies continue to work 
with industries, retailers, and other stakeholders to minimize 
the regulatory burden and uncertainty for legitimate 
businesses. Without additional oversight, it is too early to 
legislate on these challenges.
    I look forward to examining legislation in this Committee 
that addresses some of the serious problems facing our country 
rather than spending time on bills that unravel a law that has 
been examined and unanimously agreed upon by Congress multiple 
times over the last 112 years. The Lacey Act is working to 
invigorate U.S. industries and protect human rights and the 
environment around the world. Thank you, and I look forward to 
hearing from our witnesses.
    [The prepared statement of Mr. Sablan follows:]

  Statement of The Honorable Gregorio Kilili Camacho Sablan, Ranking 
Member, Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs

    Thank you, Mr. Chairman and welcome to all our guests.
    Today we will discuss our most comprehensive federal law to combat 
wildlife crime; the Lacey Act. This 100-year-old law is one of the most 
powerful protections we have for our natural resources in the United 
States and the most powerful tool we have for preserving important 
wildlife and habitat abroad.
    Wildlife, like tigers, rhinos, and apes, captivate the human 
imagination, yet they face multiple threats around the world. Although 
these animals are not native to the United States, Americans have 
repeatedly supported measures to invest in protecting these iconic 
species in their natural habitat. For example, we recently held a 
bipartisan hearing in this subcommittee that examined the 
reauthorization of the Multinational Species Conservation Funds. While 
these grants play an integral part in species protection, the global 
trade in illegal wildlife is estimated to be worth at least $5 billion 
dollars annually. The minimal civil penalties recommended in H.R. 4171 
would not deter the organized crime syndicates selling wildlife on the 
black market. Congress recognized in the early 1980s that the Lacey Act 
required criminal enforcement to provide effective wildlife protection 
and this remains true today.
    Over the last decade, it became clear that vulnerable species were 
not going to recover as long as their habitats continue to be 
destroyed. The 2008 amendments to the Lacey Act addressed this 
deficiency by making it illegal to import illegally logged wood, thus 
protecting the trees in the forests where these animals live. However, 
these provisions not only preserve wildlife, they also protect people 
and their jobs. The loss of forest resources has been found to directly 
affect the livelihood of 90 percent of the 1.2 billion people living in 
extreme poverty worldwide. The Lacey Act has helped reduce illegal 
logging by at least 22 percent globally, with reductions as high as 50 
to 70 percent in some key countries.
    Illegal logging also affects domestic jobs. Prior to passage of the 
2008 amendments, timber and wood industries in the United States were 
forced to compete with countries that illegally logged in national 
parks, avoided duties and taxes, and paid little or nothing for raw 
materials. These unfair practices can cost U.S. logging industries up 
to a billion dollars a year, which directly translates into a decrease 
in American jobs.
    There have been challenges in implementing these new provisions and 
we must make sure the agencies continue to work with industries, 
retailers and other stakeholders to minimize the regulatory burden and 
uncertainty for legitimate businesses. Without additional oversight, it 
is too early to legislate on these challenges.
    I look forward to examining legislation in this Committee that 
addresses some of the serious problems facing our country rather than 
spending time on bills that unravel a law that has been examined and 
unanimously agreed upon by Congress multiple times over the last 112 
years. The Lacey Act is working to invigorate U.S. industries; and 
protect human rights and the environment around the world.
    Thank you and I look forward to hearing from our witnesses.
                                 ______
                                 
    Dr. Fleming. I thank the Ranking Member Mr. Sablan for his 
opening statement. I now recognize Mr. Markey for an opening 
statement.

   STATEMENT OF THE HON. EDWARD MARKEY, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF MASSACHUSETTS

    Mr. Markey. Thank you, Mr. Chairman, very much. While there 
may never be an answer to the age old question of whether a 
tree falling in an empty forest makes a sound, today we ask 
another question. If a tree is illegally cut down in a forest 
and made into a guitar, do we make a sound about it? Is 
undermining a bedrock law the right tone for us to set, 
especially if it threatens domestic timber industries? 
Throughout its 112 years, the Lacey Act, a Republican 
Congressman from Iowa, has enjoyed strong bipartisan support. 
The original bill was proposed by John Lacey in 1900. 
Republicans have frequently championed provisions to expand and 
strengthen the Act, including the Reagan-era addition of 
criminal penalties in response to major organized crime 
smuggling.
    Most recently, the 2008 amendments have revived the 
domestic timber industry and reduced illegal logging 
internationally, and they were supported strongly by the Bush 
Administration and passed this Committee by unanimous consent. 
It has helped to stop illegal trade in timber, wildlife, and 
other natural resources. It is one of our greatest conservation 
laws and protects domestic industries. Stemming the tide of 
illegal wood translates to a billion dollars of increased 
revenue here in the United States every year. But now, the 
times, they are a-changin'.
    Both bills we are considering today will significantly 
weaken, or outright destroy these benefits, but while H.R. 3210 
focuses on the 2008 amendments, H.R. 4171 targets the entire 
Lacey Act. H.R. 4171 would end criminal prosecution for 
violating the Act. It would excise all references to foreign 
law. The law also says that Fish and Wildlife agents can't 
carry a gun while enforcing the law, even when they are working 
in remote areas where many of the individuals involved in 
illegal wildlife trafficking also participate in drug 
trafficking, human trafficking, and other forms of organized 
crime.
    My Republican colleagues who defend the right to bear arms 
would disarm law enforcement officers charged with protecting 
endangered bears and other wildlife. Someone claimed that we 
should shred up the Lacey Act just so guitar players can shred 
on illegally sourced instruments, that if you want to play 
Norwegian Wood, you shouldn't fret about where your guitar's 
wood originated. Well, some of our Nation's best musicians 
disagree.
    Today we will hear from Adam Gardner, the frontman for the 
Boston-based band, Guster. He is a graduate of Tufts, which is 
in my district, and has dedicated his career to ensuring that 
musical tours keep in better harmony with our environment. 
Today he is releasing a pledge of support for the Lacey Act 
signed by Willie Nelson, Bonnie Raitt, Dave Matthews Band, 
Maroon 5, Jason Mraz, and many others. Mr. Chairman, I ask for 
unanimous consent to submit for the record text from this 
pledge which has been signed by those musicians.
    Dr. Fleming. Without opposition, so approved.

                                 REVERB

                         386 Fore St. Suite 202

                           Portland, ME 04101

                              207.221.6553

                              718.228.7509

                         [email protected]

                             ReverbRock.org

Turn Up The Volume On Illegal Logging
    Widespread illegal logging is placing at risk the wood we treasure 
in our musical instruments, and thus the future of music as we know it. 
As musicians dedicated to our art and to protecting the earth's natural 
resources, we call on everyone involved in the sourcing, crafting and 
production of musical instruments to join us in our commitment to 
eliminating all trade in illegally logged timber and forest products. 
We will not buy a new instrument without asking where the wood comes 
from and if it was harvested legally and sustainably.
    We support the Lacey Act and other laws that prohibit trade in 
illegally sourced wood and we oppose the efforts currently underway to 
weaken the Lacey Act. We urge lawmakers, suppliers and craftsmen to 
ensure that our art has a positive impact on the environment rather 
than contributing to forest destruction. We call on our fellow 
musicians to do the same.

Signed,

Bonnie Raitt
David Crosby
Willie Nelson
Maroon 5
Dave Matthews Band
Jack Antonoff, F.U.N.
Jason Mraz
Bob Weir
Bare Naked Ladies
Brad Corrigan, Dispatch
Pat Simmons, Doobie Brothers
Ray Benson, Asleep at the Wheel
The Cab
Of a Revolution(O.A.R)
Ryan Dobrowski, Israel Nebeker, Blind Pilot
Guster
Reverb
Razia Said
                                 ______
                                 
    Mr. Markey. We know that slash and burn techniques are 
destroying the Amazon, and now many are saying we should also 
burn through international forests to make guitars for Slash. 
These musicians reject that notion. Over the years, these 
artists have gathered to sing ``We Are the World.'' They have 
said that they ``Ain't Gonna Play Sun City'' in apartheid South 
Africa. They have pushed for Farm Aid to assist oppressed world 
communities, and yet again these artists can see the forest for 
the illegal trees and are rejecting this latest attack against 
our bedrock conservation laws.
    I would like to thank my colleagues for calling this 
hearing. I am confident that by exploring these two bills 
further, we can all come to the conclusion that we should stand 
by the Lacey Act and soon be singing from the same songbook on 
this matter. I thank you, Mr. Chairman. I thank my colleagues 
for coming to this Committee today to testify on this very 
important issue. I yield back the balance of my time.
    Dr. Fleming. I thank the gentleman, Mr. Markey.
    [The prepared statement of Mr. Markey follows:]

     Statement of The Honorable Edward J. Markey, Ranking Member, 
                     Committee on Natural Resources

    While there may never be an answer to the age old question of 
whether a tree falling in an empty forest makes a sound, today we ask 
another question: if a tree is illegally cut down in a forest, and made 
into a guitar, do we make a sound about it? Is undermining a bedrock 
law the right tone for us to set, especially if it threatens domestic 
timber industries?
    Throughout its 112 years the Lacey Act has enjoyed strong bi-
partisan support. The original bill was proposed by Republican John 
Lacey in 1900. Republicans have frequently championed provisions to 
expand and strengthen the Act, including the Reagan era addition of 
criminal penalties in response to major organized crime smuggling. Most 
recently, the 2008 amendments that revived the domestic timber industry 
and reduced illegal logging internationally were strongly supported by 
the Bush administration and passed this committee by unanimous consent.
    It has helped to stop illegal trade in timber, wildlife, and other 
natural resources. It is one of our greatest conservation laws, and 
protects domestic industries. Stemming the tide of illegal wood 
translates to a billion dollars of increased revenue here in the U.S. 
every year.
    But now, the times they are a-changing.
    Both bills we are considering today will significantly weaken, or 
outright destroy, these benefits. But while H.R. 3210 focuses on the 
2008 amendments, H.R. 4171 targets the entire Lacey Act.
    H.R. 4171 would end criminal prosecution for violating the act. It 
would excise all references to foreign law. The law also says that Fish 
and Wildlife agents can't carry a gun while enforcing the law, even 
when they are working in remote areas where many of the individuals 
involved in illegal wildlife trafficking also participate in drug 
trafficking, human trafficking, and other forms of organized crime. My 
Republican colleagues, who reflexively defend the right to bear arms, 
would disarm law enforcement officers charged with protecting 
endangered bears and other wildlife.
    Some will claim that we should shred up the Lacey Act just so 
guitar players can shred on illegally-sourced instruments. That if you 
want to play ``Norwegian Wood'', you shouldn't fret about from where 
your guitar's wood originated.
    Well, some of our nation's best musicians disagree. Today we will 
hear from Adam Gardner, the frontman for the Boston-based band Guster. 
He's a graduate of Tufts, which is in my district, and has dedicated 
his career to ensuring that musical tours keep in better harmony with 
our environment. Today, he is releasing a pledge to support the Lacey 
Act, signed by Willie Nelson, Bonnie Raitt, Dave Matthews Band, Maroon 
5, Jason Mraz [Mur-AZ] and many others. Mr. Chairman, I ask for 
Unanimous Consent to submit for the record text from this pledge, which 
has been signed by over 40,000 musicians, bands, and music 
organizations.
    We know that slash and burn techniques are destroying the Amazon, 
and now the Republicans are saying we should burn through international 
forests to make guitars for Slash. These musicians reject that notion.
    Over the years, musicians have gathered to sing ``We Are the 
World.'' They have said they ``ain't gonna play Sun City'' in apartheid 
South Africa. They have pushed for Farm Aid to assist depressed rural 
communities. And yet again, these artists can see the forest for the 
illegal trees, and are rejecting this latest attack against our bedrock 
conservation laws.
    I'd like to thank my colleagues for calling this hearing. I am 
confident that by exploring these two bills further we will all come to 
the conclusion that we will stand by the Lacey Act, and soon be singing 
from the same songbook on this matter.
                                 ______
                                 
    Dr. Fleming. Like all witnesses, your written testimony 
will appear in full in the hearing record, so I ask that you 
keep your oral statements to 5 minutes, as outlined in our 
invitation letter to you and under Committee Rule 4(a). Our 
microphones are not automatic, as you know, so please press the 
button when you are ready to begin, and just parenthetically, 
we have a series of votes coming up in about 20 to 30 minutes, 
so our main goal, apart from hearing from our fantastic 
witnesses, is to get through them before our vote is called. So 
that is one of the things we are going to be working for.
    And of course, as you know, the lights, the way they work 
here is 4 minutes on green, 1 minute on yellow, and then when 
it turns red to conclude your remarks.
    I would now like to welcome today's witnesses on panel one, 
Senator Rand Paul of Kentucky, thank you, sir, Congressman Jim 
Cooper of Tennessee, Congressman Earl Blumenauer of Oregon, 
thank you, and Congressman Paul Broun of Georgia.
    Senator Paul, you are now recognized, sir, for 5 minutes.

STATEMENT OF THE HON. RAND PAUL, A SENATOR IN CONGRESS FROM THE 
                       STATE OF KENTUCKY

    Senator Paul. Thank you, Chairman Fleming, and thank you 
for inviting me over here to talk about this important issue. 
You know, when I first heard about the raid at Gibson Guitars, 
I was appalled, you know, that this could happen in the United 
States of America, that we would send in Federal agents from 
the Fish and Wildlife with automatic weapons to invade a 
company that hires, you know, 2,800 people around our country. 
These are law-abiding people that are making guitars, and there 
is no grizzly bears in downtown Nashville or in Gibson Guitar 
that we need to be concerned with.
    I was aghast when I learned that what they were accused of 
was not even breaking a U.S. law, they are accused of breaking 
a foreign law. The more we looked into this, I was then 
incensed to find out that the foreign law they are accused of 
breaking has nothing to do with conservation, has nothing to do 
with the rain forest, that all that hyperbole about rain 
forests and conservation has nothing to do with the issue here. 
They are accused of breaking an Indian labor law.
    This is a law that says the wood has to be finished in 
India. Same wood can come here. They just want the jobs over in 
India and not over here. And they have actually said in their 
legal pleadings that if Gibson Guitar will finish the wood over 
there, they won't be in violation. So if we send the jobs that 
we have in Nashville over to India, everything is fine.
    This is ridiculous. I could not believe that we have a law 
on our books that says we are to obey all foreign laws. How can 
that possibly be an American law and how can that possibly be 
constitutional? Not just all past foreign laws. We have agreed 
to obey all future foreign laws.
    There was a case a few years ago of two fishermen off the 
coast of Florida, Abner Schoenwetter and David McNab. They got 
6 years in prison for breaking a law that wasn't a U.S. law, 
but for breaking a Honduran fishing regulation. There is 
something from the tradition of due process that says you have 
to have fair notice. It comes out of our common law tradition. 
How are you supposed to have fair notice of a Honduran law? 
What if you don't speak Spanish? What if you don't speak 
Mandarin and it is a Chinese fishing regulation?
    We are expected to obey all the laws of the entire world? 
It really smacks at our sovereignty, it smacks at the concept 
that we create the laws in our country and that we are of any 
importance here, that we are going to agree to accept all past 
and future laws of foreign countries?
    So I think really this is something that is long overdue. 
It really grieves me that we put two people in jail for 6 years 
for breaking the laws of a foreign country. In their case, the 
Honduran government actually came and testified on their behalf 
and said they hadn't broken the laws. One of the laws that they 
were accused of breaking was that the fish were not in 
cardboard, they were in plastic. You know, to put someone in 
jail for that, you can be put in jail a year for each one of 
these misdemeanor crimes. What if you brought in 30,000 lobster 
and they found 10,000? You could get 10,000 years in prison. It 
is out of control. It is outrageous, and we need to do 
something to stop it.
    Really, you need to say that, look, if we are in favor of 
the environment, and I am, and you want to protect against 
illegal logging or you want to protect certain species, if you 
don't want people cutting off the horns of a rhinoceros and 
importing it, make a law. That is what we are here for. Make 
the law, but it would then be a U.S. law. But don't say that we 
are going to accept all the laws of Kenya or we are going to 
accept all the laws of South Africa. That is absurd on its 
face, it is Pandora's Box, we have gone too far.
    There are now 4,500 Federal crimes. The Constitution only 
authorizes us to deal with four crimes--treason, 
counterfeiting, and a couple of other crimes, laws against 
Nations, but it doesn't authorize us to be involved in all of 
this. We can have some restrictions on importation, but I see 
no reason to have criminal penalties.
    Our bill is very simple. We get rid of all reference to 
obeying foreign laws, which doesn't do anything to the Lacey 
Act. You still have restrictions in the Lacey Act. And if you 
need more, pass them, but don't obey foreign laws, and it says 
that we should have civil penalties, not criminal penalties. I 
don't think we should be putting Americans in jail for this. 
Thank you, Mr. Chairman. I yield back my time.
    Dr. Fleming. Thank you, Senator. That is very compelling 
testimony on your part, and really eye opening. I would imagine 
most people in this room would not even be aware of some of the 
things that you bring forward today.
    [The prepared statement of Senator Paul follows:]

                 Statement of The Honorable Rand Paul, 
               a U.S. Senator from the State of Kentucky

    Chairman Fleming, Ranking Member Sablan, and distinguished Members 
of the Committee on Natural Resources, I am honored to be here today to 
urge the House and Senate to move forward on the Freedom from Over-
Criminalization and Unjust Seizures Act of 2012--the FOCUS Act (S. 2062 
& H.R. 1471).
    Congressman Broun and I introduced companion bills in the Senate 
and in the House because of our shared concern regarding a dangerous 
law called the Lacey Act. The FOCUS Act makes significant revisions to 
the Lacey Act, revisions that we believe are necessary to prevent 
Americans from having their businesses raided by armed federal agents, 
their property seized, and even being sent to federal prison.
    I refer to the Lacey Act as ``dangerous'' because of the ways in 
which it has already wreaked havoc in the lives of many innocent 
Americans. The Lacey Act serves as a high-profile and frightening 
example of overcriminalization. Victims include Abner Schoenwetter and 
David McNab, who spent years in federal prison for ``violating'' 
Honduran fishing regulations that the Honduran government itself argued 
were invalid.
    Most recently, just this past August, Henry Juszkiewicz, the 
Chairman and CEO of Gibson Guitar Corporation, had his company raided 
by armed federal agents. A half million dollars worth of Mr. 
Juszkiewicz's property was seized, along with guitars and computer hard 
drives. His factory was shut down for a day, and his employees were 
ordered to go home. All this was done to him because he allegedly 
violated the Lacey Act, yet the Department of Justice has yet to file 
any formal charges against him.
    In my testimony today, I will first provide a brief background 
regarding the history of the Lacey Act. I will then discuss the ways in 
which I believe this law violates the original intent of the 
Constitution, and will summarize the revisions the FOCUS Act makes to 
the Lacey Act. I will conclude with a discussion of the manner in which 
the FOCUS Act relates to my overall concern with the ever-growing 
threat of overcriminalization.
I. Background
    The Lacey Act is a conservation law that attempts to prohibit 
trafficking in ``illegal'' wildlife, fish and plants. The original law 
was passed in 1900 for the purpose of protecting against interstate 
poaching.\1\ Congress later amended and expanded the Lacey Act to make 
it a crime to import or take any wildlife, fish or plants ``in 
violation of any foreign law.'' \2\ Since its passage in 1900, 
subsequent amendments (in 1935, 1969, 1981, 1988, and most recently, 
2008) have produced what today is an extremely broad and vague law that 
contains harsh criminal penalties.
---------------------------------------------------------------------------
    \1\ Act of May 25, 1900, Ch. 553, 31 Stat. 188 (codified as amended 
at 16 U.S.C. Sec. Sec. 3371-78).
    \2\ 16 U.S.C. Sec. 3371(d), Sec. 3372(a)(2)(A) & (B), 
Sec. 3372(a)(3)(A), and Sec. 3373(d).
---------------------------------------------------------------------------
    As Paul Larkin, Senior Legal Fellow at the Heritage Foundation 
explains, ``[t]he Lacey Act would not raise concern if the only penalty 
were a civil fine, but the law authorizes up to one year's imprisonment 
for every violation of the act. A one-year term of confinement may not 
seem onerous (unless, of course, you have to serve it), but a 
combination of one-year sentences could add up quickly. For example, if 
each fish taken in violation of the act were to constitute a separate 
offense, a fisherman could wind up with a three-or four-figure term of 
imprisonment just by bringing aboard one net's worth of fish.'' \3\
---------------------------------------------------------------------------
    \3\ Paul J. Larkin, Jr., Defanging the Lacey Act: The Freedom from 
Over-Criminalization and Unjust Seizures Act of 2012, The Heritage 
Foundation Center for Legal & Judicial Studies, No. 78, at 2 (March 16, 
2012).
---------------------------------------------------------------------------
    Notably, the original Lacey Act of 1900 contained a penalty ``not 
exceeding two hundred dollars,'' and there was no provision imposing 
jail or prison time.\4\ When the Lacey Act was significantly amended in 
1981--an amendment that expanded the potential penalties to allow for 
felony criminal convictions--a representative of the National Rifle 
Association specifically voiced civil liberties concerns with the 
changes, stating that his ``first concern [wa]s with the broad 
expansion of criminal liability.'' \5\
---------------------------------------------------------------------------
    \4\ Act of May 25, 1900, Ch. 553, 31 Stat. 188 (codified as amended 
at 16 U.S.C. Sec. Sec. 3371-78).
    \5\ Proposed Amendments to the Lacey Act of 1981, 97th Cong. 227 
(March 18, 1981) (testimony of Neal Knox).
---------------------------------------------------------------------------
II. The Lacey Act is Unconstitutional
    I believe that the Lacey Act in its current form violates our 
Constitution in a couple significant ways. First, its broad and 
unspecific delegation of congressional power to foreign governments 
violates Article I of the Constitution, which vests all legislative 
powers in the United States Congress alone. By making it a federal 
offense to import fish, wildlife, or plants ``in violation of any 
foreign law,'' Congress essentially delegates law-making authority to 
other nations.\6\
---------------------------------------------------------------------------
    \6\ Although this argument has been rejected by various circuit 
courts, it has never been squarely presented before the U.S. Supreme 
Court. See, e.g., United States v. Lee, 937 F.2d 1388, 1393-94 (9th 
Cir.1991) (rejecting a delegation challenge to the Lacey Act).
---------------------------------------------------------------------------
    Second, the Lacey Act is unconstitutionally vague, and fails to 
satisfy basic due process requirements of fair notice. As the Heritage 
Foundation notes, the Lacey Act in fact ``violates one of the 
fundamental tenets of Anglo-American common law: that `men of common 
intelligence' must be able to understand what a law means...The 
criminal law must be clear not to the average lawyer, but to the 
average person. Even if there were lawyers who could readily answer 
intricate questions of foreign law--and do so for free--the criminal 
law is held to a higher standard.'' \7\
---------------------------------------------------------------------------
    \7\ Larkin, supra note 3, at 4.
---------------------------------------------------------------------------
    Consider the practical effect of having a law such as the Lacey Act 
on the books that makes it a federal crime to violate any fish, 
wildlife, or plant law or regulation of any country in the world:
        [N]o one should be held accountable under this nation's law for 
        violating a foreign nation's law. Laws come in all forms (e.g., 
        statutes vs. regulations); in all shapes and sizes (e.g., the 
        Sherman Act vs. the Clean Air Act); and in all degrees of 
        comprehensibility (e.g., the law of homicide vs. the Resource 
        Conservation and Recovery Act). Different bodies have authority 
        to promulgate laws (e.g., legislatures, courts, and agencies); 
        to interpret them (e.g., the President or an agency's general 
        counsel); and to enforce them (e.g., city, state, and federal 
        law enforcement officers and prosecutors). And that is just in 
        America.

        Foreign nations may have very different allocations of 
        governmental power, bureaucracies, and enforcement personnel. 
        Some will speak and write in English; some will not. Some will 
        make their decisions public; some will not. Some will have one 
        entity that can speak authoritatively about its own laws; some 
        will not. And different components of foreign governments may 
        change their interpretations of their own laws over time, 
        perhaps nullifying the effect of a prior interpretation, or 
        perhaps not.

        It is sheer lunacy to assume that the average citizen can keep 
        track of such laws, let alone do so by him-or herself without a 
        supporting cast of lawyers--that is, assuming that the average 
        citizen could find a lawyer knowledgeable about the intricacies 
        of a particular foreign nation's law.\8\
---------------------------------------------------------------------------
    \8\ Larkin, supra note 3, at 4.
---------------------------------------------------------------------------
    A particularly tragic real-life example of the manner in which the 
Lacey Act violates basic constitutional requirements of due process and 
fair notice occurred with the convictions and imprisonment of Abner 
Schoenwetter and David McNab. Schoenwetter and McNab were convicted and 
sentenced to eight years in federal prison for violating Honduran 
regulations regarding lobster importation. The regulation required that 
the lobsters be packed in plastic bags, but Schoenwetter and McNab 
instead packed them in boxes. On appeal, the Honduran government itself 
filed a brief on Schoenwetter and McNab's behalf, arguing that the 
regulation never even had the force of law in Honduras, yet the circuit 
court refused to overturn the convictions.\9\
---------------------------------------------------------------------------
    \9\ See United States v. McNab, 331 F.3d 1228, 1233, 1239-47 (11th 
Cir. 2003). The McNab case is discussed extensively in the book, One 
Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activits 
Judges Threaten Your Liberty (2010) (Paul Rosenzweig & Brian W. Walsh, 
eds.).
---------------------------------------------------------------------------
    There are violent criminals who spend less time in prison than did 
these two innocent men.
    The FOCUS Act would alter the Lacey Act by removing all references 
to ``foreign law.'' It would also remove the Lacey Act's criminal 
penalties and substitute a reasonable civil penalty system. Lacey Act 
violations with a market value of less than $350.00 would be subject to 
a maximum penalty of $10,000.00, and other violations would be subject 
to a penalty of up to $200,000.00. These changes would remove the 
constitutional flaws inherent in the Lacey Act in its current form.
III. The Problem of Over-Criminalization
    The Lacey Act is but one example of the ever-growing problem of 
overcriminalization that we face in this country. Criminal law is 
increasingly being used as a tool by our government bureaucracies to 
punish and control honest businessmen attempting to make a living. 
Historically, the criminal law was intended to punish only the most 
heinous offenses that were known and understood by all people to be 
inherently evil or wrongful, offenses such as murder, rape, theft, 
arson, etc. Yet today, the criminal law is constantly used to punish 
behavior such as fishing without a permit, packaging a product 
incorrectly, or shipping something with an ``improper'' label.
    The plain language of our Constitution specifies a very limited 
number of federal crimes. But we have now moved so far away from the 
original intent of our Constitution that we don't even know or have a 
complete list of all the federal criminal laws on the books. There are 
over 4,450 federal statutory crimes scattered throughout the U.S. Code. 
And it is estimated that there are tens of thousands more crimes that 
exist among all our federal regulations. But no one--not even criminal 
law professors or criminal lawyers--actually knows the exact number 
with certainty.\10\
---------------------------------------------------------------------------
    \10\ See generally John S. Baker, Revisiting the Explosive Growth 
of Federal Crimes, Heritage Foundation L. Memo. No. 26, June 16, 2008; 
Criminal Justice Section, American Bar Association, The Federalization 
of Criminal Law (1998). For an excellent and thorough analysis of the 
serious problems posed to our nation by the proliferation of criminal 
laws at the federal level, and the lack of adequate mens rea 
requirements in the majority of these laws, see Brian W. Walsh and 
Tiffany M. Joslyn, The Heritage Foundation and National Association of 
Criminal Defense Lawyers, Without Intent: How Congress Is Eroding the 
Criminal Intent Requirement in Federal Law (2010).
---------------------------------------------------------------------------
    In addition to not knowing the exact number of federal crimes, 
another serious problem is that many of the criminal statutes that have 
been passed by Congress in recent years lack adequate mens rea 
requirements. In other words, Congress passes laws that either 
completely lack--or have an extremely weak--``guilty mind'' 
requirement, which means that someone charged under the statute could 
be convicted of a federal offense when he or she simply made an honest 
mistake, or did not possess the criminal culpability traditionally 
necessary for a criminal conviction.
    The Lacey Act is a frightening example of this trend of 
overcriminalization. I urge my colleagues to support Congressman Broun 
and me in our efforts to pass the FOCUS Act. As Justice Scalia recently 
stated, ``We face a Congress that puts forth an ever-increasing volume 
of laws in general, and of criminal laws in particular. It should be no 
surprise that as the volume increases, so do the number of imprecise 
laws...In the field of criminal law, at least, it is time to call a 
halt.'' \11\
---------------------------------------------------------------------------
    \11\ Sykes v. United States, 131 S. Ct. 2267, 2288 (2011) (Scalia, 
J., dissenting).
---------------------------------------------------------------------------
                                 ______
                                 
    Dr. Fleming. Next I would like to recognize Mr. Cooper from 
Tennessee. You have 5 minutes, sir.

STATEMENT OF THE HON. JIM COOPER, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF TENNESSEE

    Mr. Cooper. Thank you, Chairman Fleming. The bipartisan 
legislation that my Republican colleagues, Mary Bono Mack and 
Marcia Blackburn, and I have introduced is really very simple, 
although the details of Lacey Act issues can be extremely 
complex. Our legislation tries to correct several mistakes that 
we think Congress made in 2008 when it passed the latest 
amendments to the century-old Lacey Act. We are not trying to 
undermine the Lacey Act or other environmental protections, 
only to reduce the unintended consequences of the 2008 
amendments. Many Members did not notice the 2008 drafting 
errors because the Lacey amendments were a minor part of the 
farm bill that year.
    The following are three legislative goals which have broad 
bipartisan support: Number one, rare wood products, such as 
guitars that were purchased prior to May 22, 2008, should be 
grandfathered so that musicians do not have to fear owning 
them. They were purchased innocently, and their owners should 
not be punished retroactively.
    This is particularly important because due to the 
interaction with the 2000 law involving drug dealers, musicians 
cannot complain or cannot claim the innocent owner defense and 
do not even have the right to file a complaint if the 
government confiscates their instruments. This is a government 
taking combined with a gag order.
    Point number 2. Keep in place the Lacey Act ban on 
importation of endangered wood and plant products after May 22, 
2008. We support the prospective nature of the Lacey Act 
because we are against illegal logging. We want to preserve 
rare trees and plants so that future generations have the 
chance to enjoy and benefit from them. Our bill is not a broad 
overhaul of the Lacey Act, but a small surgical fix. It is 
based on the belief that the Lacey Act is working but requires 
a clarification to ensure musicians and folks like that can 
keep their guitars.
    Some have argued that this can be accomplished through 
regulation, not legislation, but for years, we have waited for 
agency regulators to clarify the 2008 amendments. They have 
not. We should not delay any longer when Congress can pursue a 
legislative course of action to help musicians and small 
business owners.
    Point number 3. Let's streamline the importation of legal 
goods. There are countless wood and plant products that can be 
harvested abroad in an environmentally sustainable fashion. 
U.S. firms that depend on such supplies should not face 
needless hassles importing these products. Likewise, a store 
owner who unknowingly imports a guitar made from illegal wood 
shouldn't be penalized the first time, but those firms and 
individuals who knowingly violate U.S. laws on importing 
endangered species should be severely punished.
    There has been a lot of unnecessary confusion about our 
attempts to improve the Lacey Act. For example, there is a 
pending investigation of a company located in my congressional 
district, Gibson, which has received a great deal of publicity. 
Our legislation does not affect that case nor any other pending 
investigation.
    Months before the latest Gibson investigation, a very 
prominent Nashville musician, Vince Gill, had been quoted in 
Newsweek Magazine pointing out the risks that he took in 
traveling with his old guitar to perform in concerts. Helping 
musicians like Vince Gill and Ricky Skaggs is the primary 
impetus of our legislation because all Americans have the 
constitutional right to travel. Musicians are denied that right 
if they cannot travel with their old instruments.
    Another confusion in the legislation comes from American 
distaste for foreign law. H.R. 4171, the FOCUS Act, makes a 
strong ideological statement but does nothing to protect 
musicians or other owners of pre-2008 products. It eliminates 
criminal penalties for violation of any foreign law with regard 
to the Lacey Act which harms efforts to curb illegal logging. 
Our bill does not require that we obey foreign law, but treats 
foreign law as data to be included in an accessible U.S. 
database to streamline the importation process and help ensure 
compliance. U.S. agencies retain the discretion to state the 
requirements that U.S. importers and owners should follow.
    Mr. Chairman, I ask you to help us change the unintended 
consequences of the 2008 Lacey Act amendments. Without your 
help, not only are musicians and music stores in jeopardy, but 
other legitimate businesses such as antique dealers and lumber 
importers. We can help these innocent people without harming 
the worthy environmental goals of the Lacey Act. We can have 
healthy forests and legal guitars. Thank you, Mr. Chairman.
    Dr. Fleming. I thank the gentleman for his testimony.
    [The prepared statement of Mr. Cooper follows:]

        Statement of The Honorable Jim Cooper, a Representative 
                in Congress from the State of Tennessee

    Chairman Fleming and Ranking Member Sablan, thank you for allowing 
me to testify to you today regarding H.R. 3210, the RELIEF Act.
    The bipartisan legislation that my Republican colleagues, Mary Bono 
Mack and Marsha Blackburn, and I have introduced is really very simple, 
although the details of Lacey Act issues can be extremely complex. Our 
legislation tries to correct several mistakes that we think Congress 
made in 2008 when it passed the latest amendments to the century-old 
Lacey Act. We are not trying to undermine the Lacey Act or other 
environmental protections, only to reduce the unintended consequences 
of the 2008 amendments. Many members did not notice the 2008 drafting 
errors because the Lacey amendments were a minor part of the farm bill 
that year.
    The following are our three legislative goals, which have broad 
bipartisan support:
        1.  Rare wood products such as guitars that were purchased 
        prior to May 22, 2008 should be grandfathered so that musicians 
        do not have to fear owning them. They were purchased 
        innocently, and their owners should not be punished 
        retroactively. This is particularly important because, due to 
        interaction with a 2000 law involving drug dealers, musicians 
        cannot claim the innocent owner defense, and do not even have 
        the right to file a complaint if the government confiscates 
        their instruments. A government taking is combined with a gag 
        order.
        2.  Keep in place the Lacey Act ban on the importation of 
        endangered wood and plant products after May 22, 2008. We 
        support the prospective nature of the Lacey Act because we are 
        against illegal logging. We want to preserve rare trees and 
        plants so that future generations have the chance to enjoy and 
        benefit from them. Our bill is not a broad overhaul of the 
        Lacey Act, but a small surgical fix. It is based on the belief 
        that the Lacey Act is working, but requires a clarification to 
        ensure musicians can keep their guitars. Some have argued that 
        this can be accomplished through regulation, not legislation. 
        For years, we have waited for agency regulators to clarify the 
        2008 amendments. They haven't. We should not delay any longer 
        when Congress can pursue a legislative course of action to help 
        musicians and small business owners.
        3.  Streamline the importation of legal goods. There are 
        countless wood and plant products that can be harvested abroad 
        in an environmentally sustainable fashion. U.S. firms that 
        depend on such supplies should not face needless hassles in 
        importing those products. Likewise, a store owner who 
        unknowingly imports a guitar made from illegal wood shouldn't 
        be penalized the first time. But those firms and individuals 
        that knowingly violate U.S. laws on importing endangered 
        species should be severely punished.
    There has been a lot of unnecessary confusion involving our 
attempts to improve the Lacey Act. For example, there is a pending 
investigation of a company located in my congressional district, 
Gibson, which has received a great deal of publicity. Our legislation 
does not affect that case, or any other pending investigation. Months 
before the latest Gibson investigation, a very prominent Nashville 
musician, Vince Gill, had been quoted in Newsweek magazine pointing out 
the risks he took in traveling with his old guitar to perform in 
concerts. Helping musicians like Vince Gill and Ricky Skaggs is the 
primary impetus of our legislation because all Americans have the 
constitutional right to travel. Musicians are denied that right if they 
cannot travel with their old instruments.
    Another bit of confusion comes from American distaste for foreign 
law. H.R. 4171, the FOCUS Act, makes a strong ideological statement but 
does nothing to protect musicians or other owners of pre-2008 products. 
It eliminates criminal penalties for violation of any foreign law with 
regard to the Lacey Act, which harms efforts to curb illegal logging. 
Our bill does not require that we obey foreign law but treats it as 
data to be included in an accessible database to streamline the 
importation process and help ensure compliance. U.S. agencies retain 
the discretion to state the requirements that U.S. importers and owners 
must follow.
    Mr. Chairman, I ask you to help us change the unintended 
consequences of the 2008 Lacey Act amendments. Without your help not 
only are musicians and music stores in jeopardy, but other legitimate 
businesses such as antique dealers and lumber importers. We can help 
these innocent people without harming the worthy environmental goals of 
the Lacey Act. We can have healthy forests and legal guitars.
    Mr. Chairman, there are many technical details in our legislation 
but all you need to know is that we did not draft our bill in haste or 
without input from interested groups. We were guided by the three 
Consensus Statements that were issued from 2009 to 2011 by all 
interested stakeholders, from retailers, to musicians, to domestic 
hardwood groups, to environmental organizations. You see, Mr. Chairman, 
almost immediately after the 2008 Lacey Act amendments were passed, 
most people realized that the amendments were deeply flawed. They 
immediately set to work on a collegial basis to identify and solve 
those problems by issuing Consensus Statements signed by all the 
parties. There is no more helpful legislative guide than the 
commendable volunteer efforts behind these Consensus Statements, which 
we did our best to embody in our bill, H.R. 3210, the RELIEF Act.
    Thank you again, Mr. Chairman and Ranking Member Sablan, and I look 
forward to any questions you may have.
                                 ______
                                 
    Dr. Fleming. Next, Mr. Blumenauer, you have 5 minutes, sir.

  STATEMENT OF THE HON. EARL BLUMENAUER, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF OREGON

    Mr. Blumenauer. Thank you, Mr. Chairman. I appreciate the 
opportunity to testify in support of the Lacey Act amendments 
and in opposition to legislation that would undermine the 
success we have had in protecting the U.S. timber industry and 
leading by example to strengthen sustainable forest practices 
worldwide. I was a principal author of that in the House, I 
worked with this Committee, spent countless hours with 
industry, labor, environmental groups to have a piece of 
legislation we think is very important.
    The two bills under consideration today would not only 
devastate the 2008 Lacey Act, but throw into question a century 
of environmental protections while adding additional 
uncertainty, and I am happy to work with this Committee or 
anybody else to deal with any legitimate concerns or unintended 
consequences. I am intrigued that somebody is doing 6 years in 
prison for putting a fish in a plastic box. I will look forward 
to finding the details about that.
    But the Lacey Act, first passed in 1900, to prohibit trade 
in endangered species, requires U.S. importers to ensure that 
the products they import were not harvested illegally. In 2008, 
the legislation I sponsored amended the Act to include 
prohibition of trade in wood and wood products illegally 
harvested in their country of origin. It is very 
straightforward. Companies who import wood products need to 
play by the rules in the country from which they import.
    The amendments were needed because the American forest 
products industry was losing over $1 billion a year to people 
who cheat. For too long, developing countries were struggling 
to do the right thing by implementing sustainable forestry 
laws, and it was being undermined by pirates, and it isn't just 
illegally harvested. These people were involved with 
trafficking. The testimony before this Committee about the 
violence, the bribery, the oppression goes beyond just a few 
endangered species. And it had devastating consequences on the 
environment, and the rate of illegal logging was going up, and 
finally there was a consensus across industry groups, business 
and labor, as I mentioned, that a legislative approach was 
necessary to undermine that black market and to protect the 
United States' economy, the environment, and local communities.
    Now, the Bush Administration in 2002 started work on this, 
noting the problems. I worked with the Bush Administration, one 
of the officials who testified with me before this Committee on 
the amendments. The Lacey Act actually is far broader than the 
immediate impact on protecting American jobs and the forest 
products industry. It was a perfect illustration of the United 
States leading by example having a positive impact on the 
strength of local environmental protection laws in developing 
countries. Since 2008, illegal logging has been reduced by as 
much as 25 percent worldwide. Taking their cues from the United 
States, countries such as Japan, New Zealand, Australia, I 
worked with the European Union doing legislation modeled on 
this. It is having an effect.
    The RELIEF Act and FOCUS Act would undermine these 
successes. Proponents claim that these offer technical 
corrections, but they would move an entire global market back 
in time. Both bills would remove important tools the Lacey Act 
provides for investigators, law enforcement officials, and 
companies who care about where their products come from, and 
that is actually most of the people and probably most of the 
performers.
    That is why the bills do not represent the consensus 
statements and are opposed by a broad coalition of 
stakeholders, including the League of Conservation Voters, the 
Hardwood Federation, American Forest and Paper Association, the 
Sierra Club, and the United Steelworkers. When did you ever see 
a coalition like that united? Implementation takes time and 
cooperation. We need to work together. I am happy to deal with 
refinement. But it is very, very important that we not 
undermine it.
    With all due respect, there is no performer that is being 
prosecuted for carrying an instrument to a city that might have 
been prior to that. In fact, it has been abundantly clear that 
there is no intent by USFWS to enforce it on the individual 
level and it has never happened. There is no need to eliminate 
the notion of first-time penalties in the exercise of due care. 
For 4 decades this has been the standard in the Lacey Act, and 
other businesses have been able to deal with it.
    And last but not least, I would have been happy to work 
with my friend, Mr. Cooper; we are two doors down. We have 
never talked about it before. I am happy to work with him to 
clarify this ambiguity. Mr. Chairman, I will conclude my 
remarks. I would like unanimous consent, however, to enter into 
the record the statement from a broad coalition of 
environmental groups. I would like unanimous consent to enter 
into the record a statement from the United States Forest 
Products Industry, including the American Forest Foundation, 
American Forest and Paper Association, American Hardwood 
Council, the Hardwood Federation, Indiana Hardwood Lumber 
Association, Kentucky Forest Owners Association, State Lakes 
Lumber Association, National Alliance of Forest Owners, the 
National Hardwood Lumber Association, and the Southeastern 
Lumber Manufacturers. And then, last but not least, the effect 
of the proposed ``RELIEF Act,'' on the Lacey Act, I would like 
to have entered into the record.
    Dr. Fleming. Without objection, so ordered.
    Mr. Blumenauer. Thank you. Thank you for your courtesy.
    Dr. Fleming. We are down under the 8-minute point, so we 
will go ahead and recess. Would you, Dr. Broun, be able to join 
us immediately after votes? We will get your testimony.
    Mr. Broun. I would be happy to, Mr. Chairman.
    Dr. Fleming. So we will be happy to get your testimony. We 
are now recessed until voting.
    [Recess.]
    Dr. Fleming. OK, the Committee will come to order. We will 
resume with Dr. Broun, so Dr. Broun, sir, you have 5 minutes.

   STATEMENT OF THE HON. PAUL C. BROUN, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF GEORGIA

    Mr. Broun. Thank you, Chairman. I greatly appreciate your 
holding a hearing on this important issue, and my bill, H.R. 
4171, the Freedom From Overcriminalization and Unjust Seizures 
Act or FOCUS Act of 2012. I greatly appreciate Senator Rand 
Paul, my dear friend, for being a leader on this issue in his 
bill, which is a companion bill. It is Senate Bill 2062. I was 
glad that he was here to testify along with others on this Act.
    When the Lacey Act was first signed into law in 1900, it 
was primarily designed as a measure to preserve wild game and 
to make poaching a Federal crime. As originally enacted, it 
imposed a maximum penalty of $200 for a violation. It did not 
contain any provisions for arrest or imprisonment as it does 
today. Over the years, and most recently through the changes in 
1981 and 2008, the Lacey Act has become the poster child for 
how the Federal Government abuses its power and has developed a 
system of sweeping criminalization.
    The Lacey Act is no longer about conservation. American 
citizens now face prosecution based upon foreign laws and 
regulations that are only concerned with many things such as 
labor management relations, minimum wage rules or with tax 
laws, and those can be very ambiguous in nature. U.S. importers 
have been turned into policemen who are responsible for knowing 
a myriad of foreign laws and regulations that are simply 
impossible to keep track of those. Even worse, importers face 
the threat of criminal prosecution regardless of whether or not 
they intended to violate a foreign law.
    As a practical matter, the Lacey Act delegates lawmaking 
authority to foreign governments and foreign government 
officials. We are subjugating American citizens to foreign law, 
whether they are there in the foreign country or here in this 
one. And it is an attack upon our sovereignty, as Senator Rand 
Paul mentioned in his testimony.
    These officials in foreign countries are neither legally 
accountable in U.S. courts nor politically accountable to the 
U.S. electorate. This delegation of congressional power to 
foreign governments and foreign officials raises serious 
questions under Article I of the U.S. Constitution. It also 
makes little sense as a matter of Federal criminal justice 
policy. Furthermore, it allows U.S. officials to apply foreign 
laws in cases where the accused might not even have been aware 
of the law that they allegedly violated.
    Most of the glaring abuses of the Lacey Act took place in 
the case brought against David McNab and Abner Schoenwetter. 
These were two businessmen that were sentenced to 97 months in 
prison for supposedly violating Honduran fishing regulations, 
and what crimes did they commit deserving of such a harsh 
sentence? They imported lobsters that had been transported in 
plastic bags instead of cardboard boxes, as required by 
Honduran law. Six years in jail for transporting lobsters in 
plastic bags.
    Additionally some of the lobster tails had fallen short of 
the minimum length spelled out in Honduran law. Even more 
disturbing, the government of Honduras told U.S. authorities 
that these regulations were not even valid in Honduras. These 
men were found guilty based on Honduran law that technically 
wasn't even valid law.
    This is insane and inane. Yet the Justice Department even 
went forward with a case and the 11th Circuit Federal Court of 
Appeals upheld these convictions. Most recently and infamously 
this past August, armed Federal agents raided the Gibson Guitar 
Corporation because of the wood that the company used to 
manufacture its guitars was supposedly illegal. The government 
seized more than a million dollars worth of property, shut the 
factory down, and has yet to even file formal charges or drop 
the case. Gibson Guitar has been a responsible corporate 
citizen throughout its existence, and they support conservation 
efforts. The company deserves better treatment from the Federal 
Government.
    It is often impossible for importers to know that certain 
products may violate the Lacey Act, and therefore subject them 
to prosecution. Even worse, foreign producers are often not 
even held accountable for violating their own laws. It is 
troubling that our U.S. Government holds U.S. citizens 
responsible to foreign laws in this country.
    I do not believe that Members of Congress intended to 
delegate our constitutional power to foreign governments or to 
overcriminalize innocent importers of minor violations. In 
fact, that is what the Lacey Act does today. The Lacey Act 
would change all this, and I thank the Chairman for holding 
this hearing, and hopefully we can move forward to stop this 
overcriminalization in this country and subjecting American 
citizens to foreign laws and regulations. Thank you. I yield 
back.
    Dr. Fleming. I thank the gentleman.
    [The prepared statement of Mr. Broun follows:]

      Statement of The Honorable Paul C. Broun, a Representative 
                 in Congress from the State of Georgia

    I would like to thank Chairman Fleming and Ranking Member Sablan 
for allowing this hearing today on H.R. 4171, the Freedom from Over-
Criminalization and Unjust Seizures (or FOCUS) Act of 2012. I would 
also like to welcome Senator Rand Paul, my friend and author of the 
Senate companion bill, S. 2062, to testify with me today on the need 
for this critical legislation.
    When the Lacey Act was signed into law in 1900, it was primarily 
designed as a measure to preserve wild game and to make poaching a 
federal crime. As originally enacted, it imposed a maximum penalty of 
$200 for a violation, and did not contain any provisions for arrest or 
imprisonment as it does today.
    Over the years, and most recently through changes in 1981 and 2008, 
the Lacey Act has become the poster child for how the federal 
government abuses broad, sweeping criminalization. The Lacey Act is no 
longer about conservation. American citizens now face prosecution based 
upon foreign laws and regulations that are concerned only with labor-
management relations, with minimum wage rules, or with tax laws, and 
that can be ambiguous in nature. U.S. importers have been turned into 
policemen, who are responsible for knowing a myriad of foreign laws 
that are simply impossible to keep track of. Even worse, importers face 
the threat of criminal prosecution regardless of whether they intended 
to violate a foreign law and regardless of the reasonableness of their 
actions.
    As a practical matter, the Lacey Act delegates lawmaking authority 
to foreign governments and foreign government officials who are neither 
legally accountable in U.S. courts nor politically accountable to the 
U.S. electorate. This delegation of Congressional power to foreign 
governments and foreign officials raises serious questions under 
Article I of the U.S. Constitution. It also makes little sense as a 
matter of federal criminal justice policy. Furthermore, it allows U.S. 
officials to apply foreign laws in cases where the accused might not 
even be aware of the law they allegedly violated.
    One of the most glaring abuses of the Lacey Act took place in the 
case brought against David McNab and Abner Schoenwetter, businessmen 
who were sentenced to 97 months in prison for supposedly violating 
Honduran fishing regulations. What crimes did they commit deserving of 
such a harsh sentence? They imported lobsters that had been transported 
in plastic bags instead of cardboard boxes, as required by Honduran 
law. Additionally, some of the lobster's tails had fallen short of the 
minimum length spelled out in Honduran law. Even more disturbing, the 
government of Honduras told U.S. authorities that these regulations 
were not even valid in Honduras. These men were found guilty based on a 
Honduran law that technically wasn't even a valid law. Yet, the Justice 
Department still went forward with the case, and the Eleventh Circuit 
Federal Court of Appeals upheld the convictions.
    Most recently and infamously, this past August, armed federal 
agents raided the Gibson Guitar Corporation because of the type of wood 
that the company used to manufacture its guitars. The government seized 
more than a million dollars in property, shut the factory down, and has 
yet to even file formal charges or drop the case. Gibson Guitar has 
been a responsible corporate citizen throughout its existence and 
supports conservation. The company deserves better treatment from the 
federal government than it has received to date.
    Yet, Gibson's case points to a larger issue faced by virtually all 
American importers. It is often impossible for importers to know that 
certain products may violate the Lacey Act and may therefore subject 
them to prosecution simply because of the composition of materials in 
those imports. Even worse, foreign producers are often not even held 
accountable for violating their own country's laws. It is troubling 
that our government holds U.S. importers responsible for foreign laws--
but the countries enacting these laws could care less about enforcing 
them.
    I do not believe that Members of Congress intended to delegate 
congressional power to foreign governments or to over-criminalize 
innocent importers for minor violations of foreign laws when they 
passed this legislation. Unfortunately, that is where we stand today 
with the Lacey Act.
    The FOCUS Act removes every mention of foreign law from the Lacey 
Act. It does so to protect the constitutional rights of our citizens. 
The FOCUS Act also strikes the provision allowing a federal prison 
sentence of up to 5 years, and reduces the maximum fine from $500,000 
to $200,000. In addition, violations with a market value of less than 
$350 would be subject to a maximum penalty of $10,000.
    I believe that passage of the FOCUS Act would go a long way toward 
correcting many of the abuses that have occurred. Our bill is a common-
sense step to protect law-abiding businesses and American citizens from 
foreign laws and over-criminalization. Again, thank you for allowing me 
to testify today and I look forward to your questions.
                                 ______
                                 
    Dr. Fleming. That concludes our first panel. Ordinarily we 
don't have a round of questions for Members, but if you would 
like, Mr. Cooper, any additional comments since you are still 
at the table or if any Members on the dais would like to ask 
questions, we would be happy to entertain them.
    Mr. Cooper. We are at your disposal, Mr. Chairman. These 
are relatively technical matters, and I think we have struck a 
bipartisan and fair compromise, so I would urge you to look at 
our legislation, but I have no disrespect for my friend and 
colleague from Georgia. There are different ways to approach 
this, and we try to balance the interests and also keep this a 
bill that could pass not only the House, but the Senate. That 
is the goal here, to preserve the many, many good features of 
the Lacey Act and cure some of these problems that have cropped 
up, especially with the 2008 amendments.
    Dr. Fleming. Mr. Faleomavaega?
    Mr. Faleomavaega. Would the Chairman yield?
    Dr. Fleming. Yes.
    Mr. Faleomavaega. I just want to thank both of our 
colleagues for their most eloquent statements, Mr. Cooper and 
Mr. Broun, and we know the situation is not only complicated, 
but contentious also in terms of what we should be doing, and, 
Mr. Chairman, I look forward to working with you and your staff 
in seeing how we can find some sense of reconciliation here 
with the two proposed bills that Mr. Cooper and Mr. Broun just 
proposed. I thank both gentlemen for appearing before our 
Committee this afternoon. Thank you, Mr. Chairman.
    Dr. Fleming. Yes, thank you. The gentleman yields back. I 
will ask the second panel to step forward, and we thank you----
    Mr. Broun. Could I make a statement, Mr. Chairman----
    Dr. Fleming. Yes, yes, by all means.
    Mr. Broun.--since we gave Mr. Cooper an opportunity.
    Dr. Fleming. Sure.
    Mr. Broun. I worked on some wildlife management projects in 
Pakistan, and actually, the Lacey Act prevented good 
conservation in protecting some wild goats--they are called 
markhor in Pakistan--from having a good management program set 
up, and it is a difference between central government Pakistani 
law and what the tribal regions, which are totally autonomous 
and have nothing to do with the central government, but the 
Lacey Act and U.S. Fish and Wildlife Service under the Lacey 
Act prevented establishing these wildlife management programs. 
That is what the Lacey Act was geared to do, was to protect 
wildlife, particularly those who are threatened and endangered, 
and actually it is acting adverse to that.
    Now, U.S. Fish and Wildlife Service, because of the--
particularly with the new additions to the Act, are 
criminalizing people who want to establish good management 
practices for wildlife, which is what the Lacey Act was geared 
to do, and it is a travesty. We are harming those entities that 
we were supposed to be protecting, and we are putting people in 
jail for just minor violations of things that they have 
absolutely no control over. And it needs to be altered. We need 
to stop this criminalization, we need to alter the Act so that 
it does have some flexibility, and we have none today.
    I appreciate the Chairman holding these hearings and look 
forward to moving forward, and hopefully we can find a solution 
to stop this overcriminalization.
    Dr. Fleming. I thank both you gentlemen today. Thank you 
for your time and your testimony. We will ask the next panel to 
step forward, please.
    We are now ready for our second panel, our panel of 
witnesses which includes Mr. Jeff Baxter, musician and 
producer, former member of Steely Dan and the Doobie Brothers, 
and former Chair of the Advisory Board for Missile Defense; Mr. 
Barry Rutenberg, Chairman of the Board, National Association of 
Home Builders; Ms. Laurie Everill, regional customs compliance 
and operations manager for IKEA--North America; Ms. Donna A. 
Harman, President and Chief Executive Officer, American Forest 
and Paper Association; The Honorable Mark Rey, representing 
Climate Advisers; Mr. Adam Gardner, frontman of Guster and 
founder and Co-Director of Reverb; and Mr. Ray D. Rubinstein, 
partner, Dinsmore & Shohl law firm, who is appearing on behalf 
of the U.S. Chamber of Commerce's Institute for Legal Reform, 
and not necessarily in that order. So we will have to work 
around that.
    Your testimony today will appear in full in the hearing 
record, so I ask that you keep your oral statements to 5 
minutes, as outlined in our invitation letter to you and under 
Committee Rule 4(a). Our microphones are not automatic, so 
please press the button when you are ready to begin, and you 
may have heard me talk about the timing lights for our first 
panel. You will have 5 minutes for your testimony. You will be 
under a green light for 4 minutes, a yellow light for 1 minute, 
which means you need to think about closing up, and then when 
it turns red, we ask you to quickly conclude your remarks so we 
can make sure and hear from everyone and get to questions.
    It is my understanding, Mr. Baxter, that you will need to 
leave after your testimony, and so we will, of course, excuse 
you whenever you are ready to go. As I understand it, you have 
led a fascinating life, and I recognize you for 5 minutes, and 
thank you for your contributions to the music industry, sir.

STATEMENT OF JEFF BAXTER (H.R. 3210), MUSICIAN/PRODUCER, FORMER 
MEMBER OF STEELY DAN AND THE DOOBIE BROTHERS, ADVISOR TO D.O.D. 
  AND I.C., FORMER CHAIR OF THE ADVISORY BOARD FOR BALLISTIC 
                        MISSILE DEFENSE

    Mr. Baxter. Thank you, sir. Mr. Chairman, members of the 
Committee, my name is Jeffrey Baxter, also known as Skunk 
Baxter. I have been a professional musician since the mid 
1960s, most notably as a founding member of Steely Dan, a 
Grammy-winning guitarist for the Doobie Brothers, among others 
performed with Elton John, The Stray Cats, Barbra Streisand, 
Rod Stewart, and a devoted player of iconic American-crafted 
instruments, whether in concerts and recording studio or even 
in my living room.
    I have also built, customized, and repaired guitars for 
over 50 years and have a great deal of practical knowledge as 
to the special relationship between wood and musical 
instruments.
    What brings me here today is how unintended consequences of 
a very good law have impacted our Nation's music industry and 
can harm our cultural heritage, and I applaud the Committee for 
holding this hearing today and want to give a special thanks to 
Representatives Jim Cooper and Marcia Blackburn, who have been 
leaders in advocating a pragmatic solution to this problem. 
They represent the cradle of American music from Music Row in 
Nashville to Memphis. I believe their bill, H.R. 3210, is a 
good starting point toward making what I believe are necessary 
changes in an important law.
    In 2008 the Congress and President signed amendments to 
strengthen the conservation aims to one of our seminal 
environmental statutes, the Lacey Act. While most of the 
American public has never heard of the Act, it has been a 
cornerstone of conservation and stewardship policy for our 
country for many years. What has not worked so well is Lacey's 
unintended effect on the American music community. This 
includes everyone from members of the New York Philharmonic to 
the small retailer that rents violins to the local elementary 
school. Guitars, violins, piano keys, clarinets, and other 
common instruments are made using tropical hardwoods, usually 
ebony or rosewood, known and referred to as tonal woods. 
Musicians value these woods because of their durability and the 
unique sound they help create. There is no domestically grown 
substitute.
    Yet under the current language of the Lacey Act, 
questionable wood and wood products are treated as contraband 
in the same way as cocaine and heroin. This strict 
interpretation of illegality of musical instruments and other 
wood products can generate serious liability for their owners, 
even with no knowledge or reason to know of the product's 
questionable past. Once an instrument is seized as contraband, 
the musician or retailer has no legal recourse to regain the 
product. There is no way for honest owners to demonstrate they 
acted with due care or bought from a reputable source. Makes 
sense for cocaine and heroin where there is no lawful reason to 
possess the product but doesn't make sense if you have a 
Steinway or a Stradivarius. I strongly recommend that consumers 
are given the opportunity to challenge procedures and 
forfeitures before an impartial judge.
    This change in the Lacey Act will provide consumers with an 
opportunity to prove they have exercised due care. If the judge 
agrees, they would get their item or materials returned, and I 
think we can all agree that this will provide the maximum 
benefit to all concerned parties.
    The second change would be to exempt products that were 
made before Congress expanded the Lacey Act in 2008. I don't 
think Congress intended to make antique mahogany desks or 
vintage guitars illegal contraband when the recent amendments 
were passed, but in reality, that is what has happened. There 
is a legitimate fear that because the legality of the wood 
source may be in question, it has become extremely difficult to 
prove which items are or are not contraband. Selling a pre-2008 
guitar on eBay or any other manner can make criminals out of 
both the buyer and the seller and everyone else in the chain.
    Finally, I have heard from guitar makers that the Lacey Act 
is incredibly vague in what it defines as a violation. 
Currently people who use foreign-sourced wood to make products 
must not take possession of any wood that could have violated 
foreign law. It doesn't matter whether the law has to deal with 
protecting the environment or not, and it doesn't matter 
whether the foreign country believes its laws have been 
violated. If the wood is harvested, processed, finished or 
shipped using any method that the U.S. Government alleges 
violates foreign law, then that wood and the products from it 
become contraband.
    I agree that people who knowingly violate the law should be 
punished, but people who follow the rules, exercise good 
judgment, buy from reputable sources should not find themselves 
in a Kafkaesque situation where no proof is needed and no 
appeal is heard. To me this is contrary to the very ideals and 
laws on which this country was founded. The law, as it stands, 
presents an impossible burden not only for Steinway and Fender 
and the other companies in the musical instrument business, but 
also the small business artisans and the Federal agencies we 
task to enforce their laws. Conservation efforts are best 
served when they are focused, fair, and when limited resources 
can be used to make the most impact.
    I believe we can make two positive changes: One would be to 
narrow the scope of laws to those that deal directly with the 
environment and conservation. Another would be to create 
programs that allow businesses to work in concert with the 
government to ensure they are in compliance with the law prior 
to bringing their products into the U.S. These are just some of 
the ideas Congress should consider. We need exotic forests to 
thrive, and we all want to see the Lacey Act be successful. For 
too long the world has let the tropical forests be decimated 
without protection. The best way to protect and ensure the 
survival of all of the world's forests is to make more valuable 
for a poor farmer to protect the forests than to clear it for 
grazing land or uncontrolled harvesting.
    I am not here to advocate overturning, eviscerating or 
weakening the Lacey Act. Rather, I believe it should be made 
more effective and focused while ensuring that law abiding 
American musicians and American businesses can continue to 
create music and create jobs without fear of accidentally 
violating the Lacey law by identifying and correcting potential 
violations before rather than after environmental harm is done.
    American musicians and the music they make are national 
treasures respected the world over. American music is a vital 
component of American history, American soft power, and plays a 
very important and positive role in the way the U.S. is 
perceived by the global community. Making criminals out of 
musicians as well as those who design, build, and sell musical 
instruments serves no rational purpose whatsoever. The Lacey 
Act is a good piece of legislation, but let's all work together 
to make it as beneficial as can be for all concerned. Thank you 
for your time and the opportunity to speak to you today, sir.
    Dr. Fleming. Thank you, Mr. Baxter. Thank you for your 
testimony.
    [The prepared statement of Mr. Baxter follows:]

                        Statement of Jeff Baxter

    Mr. Chairman and the members of the Committee, my name is Jeffrey 
Baxter, also known as Skunk Baxter. I have been a professional musician 
since the mid-1960s, most notably as a guitarist for Steely Dan and the 
Doobie Brothers. Among others, I have performed with Elton John, The 
Stray Cats and The Beach Boys, as a studio musician for over 40 years 
have backed artists as varied as Barbara Streisand, Gene Simmons and 
Dolly Parton, and have been a devoted player of iconic, American-
crafted instruments whether in stadium concerts before thousands of 
people, in the recording studio or alone in my living room. I have also 
built, repaired and customized guitars for over 50 years and have a 
great deal of practical knowledge as to the special relationship 
between wood and musical instruments.
    What brings me here today are the how the unintended consequences 
of a very good law have impacted our nation's music industry and could 
harm our cultural heritage. I applaud the Committee for holding this 
hearing today, and I want to give a special thanks to Representatives 
Jim Cooper and Marsha Blackburn, who have been leaders in advocating a 
pragmatic and bipartisan solution to the problem. They represent a 
state that is the cradle of American music from the country capital of 
Music Row in Nashville to the blues of Memphis' Beale Street. They've 
shown an understanding of issues facing American musicians, and we all 
appreciate it. I believe their bill, H.R. 3210, is a good starting 
point toward making what I believe are necessary changes in an 
important federal law.
    In 2008, the Congress passed and the President signed amendments to 
strengthen the conservation aims of one of our seminal environmental 
statutes, the Lacey Act. While most of the American public has never 
heard of the Act, it has been a cornerstone of conservation and 
stewardship policy for more than century.
    Originally passed to ensure that exotic bird species weren't wiped 
out in the pursuit of feathers for hats, the Lacey Act has been 
expanded to take in other species--most notably woods and other plants. 
Make no mistake about it, this was a good change. The 2008 amendment 
was a groundbreaking way to put a stop to the illegal, clear-cut 
forestry that has decimated the world's vital tropical rain forests. By 
many metrics, the law and others like it have worked to slow 
deforestation and to help establish more sustainable forestry in 
countries that had a lack of control.
    But what has not worked so well is Lacey's unintended effect on the 
American music community. This includes everyone from members of the 
New York Philharmonic to the small retailer that rents violins and 
guitars to the local elementary school band. Music Trades magazine 
estimates that the American music industry employs approximately 65,000 
people (including retail and manufacturing) and in 2011 generated 
approximately $6.6 billion in revenue for the American economy. Based 
on some surveys, there are approximately 9 to 10 million guitar players 
in the U.S. alone.
    Guitars, violins, piano keys, clarinets, and many other common 
instruments are made using tropical hardwoods. Ebony and rosewood, two 
of the most common woods used in the manufacture of musical 
instruments, are not naturally available in North America. Musicians 
value these woods because of their durability and the sound they help 
create. As such they are known as ``tonal woods'' and, quite frankly, 
there isn't a substitute for them in our business.
    Yet under the current language of the Lacey Act, questionable wood 
and wood products are treated as contraband, in the same way that 
cocaine and marijuana are. But unlike cocaine, wood is not inherently 
illegal; there are perfectly legal reasons to possess wood, and there 
are none for cocaine. This strict liability treatment of musical 
instruments and other wood products can generate serious liability for 
their owners, even those with no knowledge or reason to know of the 
product's questionable past. Put simply, once a government agency 
seizes wood and plant products it claims were illegally harvested, 
their owners face forfeiture of the products irrespective of the steps 
they took before acquiring the product to determine its history and 
legality.
    Once an instrument is seized as ``contraband,'' the musician or 
retailer has no legal recourse to regain the product on the basis of 
his compliance efforts. There is no way for honest owners to 
demonstrate that they exercised due care. I agree that, people who 
knowingly violate the law should be punished. But people who follow the 
rules, exercise good judgment, and buy from reputable sources should 
not be put in a Kafka-esque situation where no proof is needed and no 
appeal is heard. I strongly recommend that the Act be amended to allow 
consumers the opportunity to challenge seizures and forfeitures under 
the Lacey Act. This change will only provide consumers with an 
opportunity to prove to an impartial judge that they exercised due 
care. If the judge agrees, the consumer will be permitted to retain the 
products; if not, the products will be subject to forfeiture. This 
amendment will have no effect on the civil penalty or criminal 
forfeiture and penalty provisions contained in the Lacey Act.
    A second change that should be made is to exclude products that 
were made before May 22, 2008, when the Lacey Act amendments were 
enacted. I don't think Congress intended to make antique mahogany desks 
or vintage guitars illegal contraband when the recent amendments were 
passed, but that is what happened. Many people are worried that because 
they cannot clearly demonstrate the ultimate sourcing of their 
products, they could lose their valued instruments or wood inventory in 
the event the law is retroactively applied. By providing clear legal 
title to items that were legal up to the date of enactment you can 
provide a great deal of certainty to musicians everywhere, many of whom 
have played the same instrument for years and treasure them as an 
integral part of the creative process
    Finally, I have heard from luthiers--the people who make guitars--
that the Lacey Act is incredibly vague in what might be a violation. 
Currently, people who use foreign sourced wood to make products must 
not take possession of any wood that could have violated any foreign 
law. It doesn't matter whether the law exists to deal with protecting 
the environment or not and it doesn't matter whether any foreign 
country believes that its own law was violated. If the wood was 
harvested, processed, finished, or shipped using any method that the 
U.S. Government alleges violated any foreign law then that wood, and 
the products made from it, become contraband.
    Digesting the encyclopedia containing every agricultural, labor, 
export, transportation, taxation, or certification statute that might 
deal with a plant or animal in every country in order to legally import 
materials in conformity with Lacey is just too heavy a burden for any 
business. Conservation efforts are best when they are focused and when 
limited resources can be used to make the most impact.
    I believe we can make two positive changes. One would be to narrow 
the scope of laws to those that deal directly with the environment and 
conservation. This would uphold the Lacey Act's conservation purpose, 
while giving businesses a realistic metric with which to comply. 
Another method would be to establish a voluntary pre-certification 
program that would allow businesses to work with the U.S. Department of 
Agriculture to ensure that their products or raw material are fully in 
compliance with the law prior to importing them into the US. This 
voluntary pre-certification would give industry clarity, while cutting 
down on the enormous paperwork the government has to process. It would 
also strengthen the true aims and spirit of the Lacey Act by 
identifying and correcting potential violations BEFORE, rather than 
AFTER, any environmental harm is done.
    I would posit that these are just some of the ideas that Congress 
should consider. As musicians, we need these exotic forests to be 
sustainably managed and we want to see the Lacey Act succeed. For too 
long the world let tropical forests be decimated without protecting 
them as vital resources. The best way to ensure forest survival though, 
is to make it more valuable for a poor farmer to protect the forest 
than to clear it for grazing land. One of the ways to do that is for 
musicians to continue to be able to buy legal and well-crafted guitars 
and other instruments. We cannot play our part if we inadvertently make 
instruments, and their inputs, into contraband.
    I am not here to advocate overturning, eviscerating, or weakening 
the Lacey Act. Rather, I think it could be made more effective and 
focused, while ensuring that law-abiding American musicians and 
American businesses can continue to create music and create jobs 
without fear of accidentally violating Lacey. American musicians and 
the music they create are national treasures, respected the world over. 
American music is a vital component of American Soft Power and plays a 
very important and positive role in the way the U.S. is perceived by 
the global community. The Lacey Act is a good piece of legislation, but 
let's work to make it better.
                                 ______
                                 
    Dr. Fleming. Next, Mr. Rutenberg, you have 5 minutes, sir, 
and make sure the microphone is close to your mouth.

   STATEMENT OF BARRY RUTENBERG (H.R. 3210), CHAIRMAN OF THE 
          BOARD, NATIONAL ASSOCIATION OF HOME BUILDERS

    Mr. Rutenberg. Mr. Chairman, the microphone isn't working.
    Dr. Fleming. I think it is not on yet.
    Mr. Rutenberg. May I exchange seats with the gentleman in 
the center?
    Dr. Fleming. Sure, absolutely, whatever is easier for you. 
See, if Congress could make more compromises like this, I think 
we would get a lot more done. It is a good first step. All 
right, you have 5 minutes when you are ready, sir.
    Mr. Rutenberg. Thank you, Chairman Fleming, Ranking Member 
Sablan, members of the Subcommittee, and thank you for the 
opportunity to testify today. My name is Barry Rutenberg, and I 
am the Chairman of the Board of Directors for the National 
Association of Home Builders and a home builder from 
Gainesville, Florida. NAHB supports the goals of the Lacey Act. 
We do not support illegal logging in anyplace at anytime. NAHB 
also commends Representative Cooper for his proposed reforms of 
the Lacey Act. Honest business owners must have the right to 
seek the return of goods acquired through the exercise of due 
care, and we thank you for initiating this important 
discussion. NAHB believes that a more thorough examination of 
this requirement and other provisions of the Lacey Act is 
appropriate, and we are pleased that the Subcommittee is 
looking into these issues.
    NAHB is concerned the 2008 amendments created a number of 
unintended consequences. Home builders and our customers are 
now faced with the unrealistic requirement of divining the 
origin and legality of the thousands of wood products we use. 
There is no magic 8 ball for that. The liability placed on the 
builder and the end user creates unnecessary uncertainty. It is 
tough enough being a home builder these days, and the thought 
that I could face government action for unknowingly using an 
illegal wood product and not having access to courts to 
challenge the government action is something no business should 
face. With this in mind, it is of the utmost importance that 
honest business owners, including home builders, have the right 
to seek the return of goods acquired through the exercise of 
due care under the Lacey Act.
    Amending the Act to include reaffirmation of civil 
forfeiture law provides an important liability protection for 
the business community, and ultimately the consumer. U.S. 
Department of Justice has virtually eliminated this important 
defense for honest business owners through a broad 
interpretation of the law. By deeming wood products that 
violate Lacey contraband, innocent companies are left without 
legal standing to challenge a government taking in court. 
Coupled with a requirement that the U.S. Government enforce an 
almost limitless set of foreign laws, builders and ultimately 
consumers are left at great risk. The result is that the entire 
supply chain dealing with imported wood products, including 
builders and consumers, are held personally liable to certify 
that the timber product did not come from plant material that 
was taken, transported, possessed or sold in violation of any 
foreign law. The way the law is currently structured leaves 
wide open the entire chain of custody of a timber product, 
including builders who have no way of knowing the origin of a 
particular piece of lumber, a component of a cabinet, closet 
door or crown molding to the details of an enforcement action.
    Further, because our builders generally buy their products 
through U.S. suppliers or importers, and all products that 
enter the United States must pass through U.S. Customs, the 
products have already gone through the required foreign 
paperwork, documents, and permits to allow them to enter the 
U.S. at the outset.
    For the U.S. Government to later determine the products of 
a component of a product violate the Lacey Act after its entry 
into the U.S. is unfair and illogical. There is no reasonable 
expectation that the supply chain should know when or if a 
violation has occurred, much less the underlying laws that have 
been violated. Holding a remodeler, for example, responsible 
for knowing, much less understanding the laws of a particular 
country where his or her wood cabinet was sourced is simply 
unfair. I do not read foreign laws to my grandchildren when 
they go to sleep at night.
    To preserve the integrity of the Lacey Act, NAHB also 
recommends that the law should be revised to be more focused 
and transparent about which foreign laws may give rise to a 
violation. By narrowing the scope of foreign laws covered by 
the Lacey Act, such as those laws that promote the protection 
or conservation of threatened or endangered plants or plant 
products, there would be greater certainty about the law in the 
supply chain's obligations.
    H.R. 3210 represents an important first step, and we look 
forward to working with Representative Cooper and the 
Subcommittee to improve the bill as it moves through the 
legislative process. Thank you again for the opportunity to 
testify. I look forward to your questions later.
    Dr. Fleming. Thank you, Mr. Rutenberg.
    [The prepared statement of Mr. Rutenberg follows:]

         Statement of Barry Rutenberg, Chairman of the Board, 
         on Behalf of the National Association of Home Builders

Introduction
    Chairman Fleming, Ranking Member Sablan and members of the 
Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs, I am 
pleased to appear before you today on behalf of the National 
Association of Home Builders (NAHB) to share our views on the 2008 
Amendments to the Lacey Act (16 U.S.C. Sec. Sec. 3371, et seq.). We 
appreciate the invitation to appear before the Subcommittee on this 
important matter. My name is Barry Rutenberg, and I am the Chairman of 
the Board for NAHB and a home builder and remodeler from Gainesville, 
Florida.
    NAHB represents more than 140,000 members involved in the home 
building, remodeling, multifamily construction, property management, 
subcontracting and light commercial construction industries. We are 
affiliated with more than 800 state and local home builder associations 
throughout the country, and since the association's inception in 1942, 
NAHB's primary goal has been to ensure that housing is a national 
priority and that all Americans have access to safe, decent and 
affordable housing, whether they choose to buy or rent a home.
    First, I want to say that NAHB supports the goals of the Lacey Act 
and the prevention of trade in illegally harvested plant and plant 
products. Unequivocally, we do not support illegal logging in any place 
at any time.
    Second, NAHB commends Representative Cooper for his earnest and 
diligent efforts in proposing much needed reforms to the Lacey Act, 
while at the same time, making efforts to improve and protect the 
integrity of the law. H.R. 3210, the Retailers and Entertainers Lacey 
Implementation and Enforcement Fairness Act or ``RELIEF Act'', 
recognizes the essential need to hold harmless those who, unknowingly 
and without any culpability, are found to be in possession of products 
that run afoul of the Lacey Act. Honest business owners must have the 
right to seek the return of goods acquired through the exercise of due 
care, and we thank Representative Cooper for initiating this important 
discussion.
    Notwithstanding, NAHB believes that a more thorough examination of 
this requirement and other provisions of Lacey is appropriate, and we 
deeply appreciate the Subcommittee taking a judicious look into these 
issues.
The Lacey Act and Implications on Affordable Housing
    Prompted by a growing concern about interstate profiteering in 
illegally taken wildlife, Representative John Lacey of Iowa introduced 
the Lacey Act in 1900, producing America's first federal wildlife 
protection law. The original law intended to conserve and protect 
certain species of wildlife in the states. Through a series of 
amendments over the last century and most recently in 2008, the current 
Lacey Act has expanded to criminalize trade in protected species of 
both plants, including wood products, and animals. Today, the Lacey Act 
generally makes it unlawful for any person to import, export, 
transport, sell, receive, acquire or purchase fish, wildlife, or plants 
taken, possessed, transported, or sold in violation of any federal, 
state, foreign, or Native American tribal law, treaty or regulation.
    NAHB is concerned the 2008 Amendments created a number of 
unintended consequences for downstream users. Creating uncertainty in 
plant-based products harvested, produced or imported can have a 
detrimental effect on home builders and their clients. By including an 
extremely wide and elastic set of foreign laws that could potentially 
form the basis of a violation, the 2008 Amendments left builders 
unreasonably ignorant of the bounds their legal responsibilities. This 
uncertainty is undeniably magnified absent a hold harmless provision 
for honest business owners.
    The ability to operate effectively in the home building industry 
and to price a home competitively depends on the degree to which the 
builder's overall costs are certain and predictable. Predictability is 
of paramount importance as it allows builders to accurately estimate 
and account for costs in building homes. Further, the more confidence a 
builder has in pre- and post-construction costs, the more cost-
effective the home building process is, as well as the builder's 
ability to pass those corresponding savings through to homeowners.
    The building industry is vitally important in maintaining a healthy 
economy. A strong housing sector provides a critical component of local 
economic development. Housing creates jobs, increases the demand for 
goods and services within a particular community, generates revenues 
for local governments and provides affordable housing. Residential 
construction provides significant income and jobs for local workers and 
generates important local economic activity for residents, local 
businesses and governments.
    Construction activities have positive impacts by creating ongoing 
beneficial impacts in communities as new home purchasers pay taxes, and 
buy goods and services in the community. For example, NAHB estimates 
the first-year economic impacts of building 100 typical single family 
homes include $23.1 million in wage and net business income, $8.9 
million in federal, state and local taxes, and 305 jobs.
    This impact is of particular concern in the affordable housing 
sector where relatively small price increases can have an immediate 
impact on low to moderate income home buyers who are more susceptible 
to being priced out of the market. As the price of the home increases, 
those who are on the verge of qualifying for a new home purchase will 
no longer be able to afford to purchase a new home. A 2012 priced-out 
analysis done by NAHB illustrates the number of households priced out 
of the market for a median priced new home due to a $1,000 price 
increase. Nationally, this price difference means that when a median 
new home price increases from $225,000 to $226,000, 232,447 households 
can no longer afford that home.
    Home builders are generally small business entrepreneurs. 82 
percent of home builders build fewer than 25 homes a year, and 60 
percent of NAHB's members build fewer than ten homes a year. Many of 
these small-volume builders and subcontractors do not have the capital 
to withstand the artificial price increases and price volatility of 
trade restrictions. Increases in building material costs mean that 
small builders may be disproportionately affected by more expensive 
lumber, leading to fewer homes constructed and sold to downstream 
purchasers.
    Furthermore, U.S. trade laws give little consideration to the 
interests of consumers and downstream industries. This bias has limited 
the ability of American consumers to receive products and services of 
the highest quality at the lowest cost, and of U.S. businesses to 
provide jobs and increase production. It also encourages other 
countries to adopt similar protectionist policies that limit the 
choices of their citizens and opportunities for U.S. exporters.
    The people who ultimately pay the cost of trade restrictions are 
consumers--the homebuyers, renters and people remodeling their homes. 
Consumers are rarely organized, and that makes them an easy target to 
fund subsidies for special interests.
Lacey Act Recommendations
    For these reasons, NAHB is specifically concerned about the 
provisions in Lacey related to civil forfeiture law, in addition to the 
seemingly limitless jurisdictional boundaries that could potentially 
form the basis of a Lacey Act violation.
    Modern day civil forfeiture law, the Civil Asset Forfeiture Reform 
Act, was indeed contemplated by Congress as a part of the Lacey Act 
through the 2008 amendments. Recognizing the need to hold harmless 
those who exercised due care in the acquisition of wood and plant 
products, Congress sought to exempt honest business owners, and 
instead, provide the U.S. government more targeted tools to go after 
egregious, knowing violators.
    The U.S. Department of Justice, however, has virtually eliminated 
this important defense for honest business owners through a broad 
interpretation of the law. By deeming Lacey-violative wood and plant 
products ``contraband'', innocent companies are left without legal 
standing to challenge a government taking in court. Coupled with a 
requirement that the U.S. government enforce an almost limitless set of 
foreign laws, builders, and ultimately consumers, are left at great 
risk.
    The result is that the entire supply chain dealing with imported 
wood products--including builders and consumers--are held personally 
liable to certify that the timber product did not come from plant 
material that was taken, transported, possessed or sold in violation of 
any foreign law. The way the law is currently structured leaves wide 
open the entire chain of custody of a timber product, including 
builders who have no way of knowing the origin of a particular piece of 
lumber, a component of a cabinet, closet door or crown molding, to the 
details of an enforcement action.
    Considering all of the components that may go into the construction 
of a house, such as a set of kitchen cabinets, it quickly becomes clear 
how daunting it would be to identify and track down the source for each 
component of that final product. The sheer number of different sources 
of wood that could be included in the finished home makes it nearly 
impossible for a builder or remodeler to know with certainty where and 
under what circumstances the individual components were sourced.
    Further, because our builders generally buy their products through 
U.S. suppliers or importers, and all products that enter the United 
States must pass through U.S. Customs, the products have already gone 
through the required foreign paperwork, documents and permits to allow 
them to enter the United States at the outset. For the U.S. government 
to later determine the products, or a component of a product, violate 
the Lacey Act after its entry into the United States is unfair and 
illogical. There is no reasonable expectation that the supply chain 
should know when or if a violation had occurred, much less the 
underlying laws that had been violated. Holding a remodeler, for 
example, responsible for knowing, much less understanding, the laws of 
a particular country where his or her wood cabinet was sourced is 
simply irrational.
    With this in mind, it is of the utmost importance that honest 
business owners, including home builders, have the right to seek the 
return of goods acquired through the exercise of due care. Amending the 
Lacey Act to include reaffirmation of civil forfeiture law provides an 
important liability protection for the business community and 
ultimately the consumer.
    To preserve the integrity of the Lacey Act and help advance its 
policy objectives, NAHB also recommends that the law should be revised 
to be more focused and transparent about which foreign laws may give 
rise to a violation. By narrowing the scope of foreign laws covered by 
the Lacey Act, such as those laws that promote the protection or 
conservation of threatened or endangered plants or plant products, 
builders would be provided with greater certainty about the law, their 
obligations, and subsequently, be able to more accurately estimate and 
account for costs in building homes.
Conclusion
    NAHB commends the Subcommittee on Fisheries, Wildlife, Oceans and 
Insular Affairs for examining the Lacey Act today. At a time when the 
economy remains stagnant, it is wise to reconsider laws, such as the 
Lacey Act, and their impact on American businesses. The century-old law 
and its subsequent amendments are certainly ripe for meaningful reform.
    NAHB also expresses deep appreciation to Representative Cooper, 
who's RELIEF Act represents a positive step towards bringing the intent 
of Lacey in line with the practical effects of its implementation. We 
remain hopeful that with some clarifying language on the chain of 
liability and scope issues, NAHB can fully support H.R. 3210 as it 
moves forward in the legislative process.
                                 ______
                                 
    Dr. Fleming. Next we have Ms. Everill. You have 5 minutes, 
ma'am. Thank you.

   STATEMENT OF LAURIE EVERILL (H.R. 3210), REGIONAL CUSTOMS 
     COMPLIANCE AND OPERATIONS MANAGER, IKEA--NORTH AMERICA

    Dr. Fleming. The light is not coming on? OK. Yeah, we have 
a technical problem.
    Ms. Everill. Thank you. My name is Laurie Everill, and I 
work for IKEA--North America in New Jersey. We at IKEA 
appreciate the opportunity to speak today on the Lacey Act. 
IKEA is one of the world's most recognizable brands and one of 
the largest retailers of furniture and housewares in the United 
States. We have a workforce of 16,000 workers, we operate 38 
retail stores, five distribution centers, a service and a 
trading office, and support a manufacturing facility all here 
in the United States.
    Incorporating good stewardship and sustainability into its 
everyday business is one of IKEA's four corporate cornerstones. 
Wood is IKEA's most important raw material. As such, IKEA has 
been performing due care to create a sustainable forest 
management program for over a decade. IKEA is directly impacted 
by the Lacey Act, and we strongly support the law's objectives 
to end illegal taking of trees and plants.
    Notwithstanding IKEA's commitment to the Lacey Act, we 
believe there are several challenges that we encourage Congress 
to review. Our verbal testimony today will cover three issues: 
The import declaration, due process, and the scope of foreign 
laws and regulations. IKEA recognizes the importance of the 
declaration to sustainability and enforcement; nevertheless, 
IKEA has found that providing genus, species, and country of 
harvest information on a transactional basis requires the 
submission of a tremendous amount of data that is costly and 
administratively burdensome for both importers and the 
government while contributing little to the prevention of 
illegal logging.
    It is IKEA's opinion in its current form the declaration is 
unsustainable long term and not the best use of resources in 
the prevention of illegal logging. IKEA suggests that Congress 
consider alternatives to the current declaration process that 
can meet the needs of business, environmental, and enforcement 
communities. The potential of a declaration for composite wood 
products makes the requirement even more untenable as such 
products are made by by-products such as sawdust, scraps, and 
other remnants derived from other manufacturing processes. 
While this type of material reuse is positive from a recycling 
and a sustainability perspective, it makes the collection of 
data for declaration purposes virtually impossible. IKEA 
believes that the declaration requirements should not apply to 
composite products until it is determined to be feasible, 
practical, and effective.
    The heart of the Lacey Act is the prohibition against the 
importation of products containing illegally harvested wood or 
plant material, which is enforced through criminal and civil 
penalties and seizure and forfeiture of merchandise. Importers 
must exercise due care to ensure their products do not contain 
illegally harvested wood or plant material. The Lacey Act 
amendments specifically state that seizures are governed by the 
Civil Asset Forfeiture Reform Act, or CAFRA, which provides due 
process for authorities to present their case and facts through 
a legal process. However, in practice, the enforcing agencies 
treat wood and plants alleged to be illegally harvested as 
contraband. IKEA believes that Congress should clarify the 
provisions to provide a legal means for importers to address 
allegations, forfeitures, and seizures and preserve the rights 
of appeal in a court of law.
    The law defines illegal taking of trees or plants broadly, 
and in practice, the definition is open to interpretation and 
sweeps in laws and regulations having little or no connection 
to the conservation of trees and plants. As a result, importers 
have little clarity as to what foreign laws and regulations 
would be applied under the Lacey Act. IKEA recommends that 
Congress clarify the foreign laws and regulations to be 
directed toward conservation of trees and plants.
    To address these challenges, IKEA is looking for a new 
legislative approach that effectively addresses the issues of 
businesses and environmental organizations, stands the best 
chance of generating broad bipartisan support, but does not 
undermine the important goal to stop illegal logging. We 
believe our recommendations will better achieve these 
objectives by making enforcement of the law more targeted and 
effective, encourage the adoption of strong compliance measures 
within the industry, and advancing the policy goals of the law 
to promote proper forest stewardship and conservation practices 
around the world. We thank you, again, for the opportunity to 
appear before you today.
    [The prepared statement of Ms. Everill follows:]

     Statement of Laurie Everill, Regional Customs Compliance and 
                Operations Manager, IKEA--North America

    My name is Laurie Everill, and I work for IKEA-North America in 
Westampton, New Jersey. My responsibilities as Regional Customs 
Compliance & Operations Manager include ensuring company compliance 
with the Lacey Act and other laws and regulations affecting IKEA's 
import operations. As a member of both the National Retail Federation 
and the Retail Industry Leaders Association, the two trade associations 
representing the U.S. retail industry, we at IKEA appreciate the 
opportunity to speak not only on behalf of our company, but also other 
retailers at today's hearing on the Lacey Act Amendments regulating the 
importation of wood and plant products.
    With 325 stores in 41 countries and more than 1,000 suppliers in 53 
countries, IKEA is one of the world's most recognizable retail brands. 
IKEA is also one of the largest retailers of furniture and house wares 
in the United States, where we operate 38 retail stores, five 
distribution centers, a service facility in Pennsylvania, a trading 
office in Texas, and support a manufacturing facility in Virginia. 
IKEA's U.S. workforce totals 16,000 associates in a wide range of jobs 
from product sourcing, manufacturing, sales and marketing to 
warehousing, logistics, and legal compliance.
    The IKEA vision is to create a better everyday life for the many 
people. As a company with its roots in Sweden, IKEA has a long 
commitment to policies and practices that advance the highest degree of 
corporate social responsibility. Promoting and implementing good 
environmental stewardship and sustainability into its everyday business 
is one of IKEA's four corporate cornerstones.
    Since many of the products we sell contain wood and plant material, 
IKEA is directly impacted by the Lacey Act Amendments, and we strongly 
support the law's objectives to end the illegal taking of trees and 
plants throughout the world. We support Lacey as it promotes those 
activities and efforts that IKEA has undertaken for over a decade and 
it will create a level playing field amongst importers that are serious 
about the prevention of illegal logging. IKEA sources 14.5 million 
cubic meters of round wood equivalents from 51 countries, making wood 
our most important raw material. As such IKEA has been performing due 
diligence and traceability to prevent illegally harvested wood and 
create a sustainable forest management program for over a decade and 
several years before the passage of the Lacey Act Amendments in 2008.
    Notwithstanding IKEA's commitment to comply fully with the Lacey 
Act Amendments, we believe there are several challenges that we 
encourage Congress to review and consider options to address. There are 
four specific issues the retail industry believes require legislative 
action, which, if undertaken, will improve the operation of the law, 
make enforcement more effective, provide incentives for industry to 
adopt robust due diligence measures in their supply chains, and help 
better achieve the law's policy goals to end illegal logging.
Import Declaration
    IKEA will not be recommending that the declaration requirement be 
removed from Lacey Act Amendments as we recognize the importance to 
sustainability and the value of importers knowing the type of wood used 
and the origin of wood in their products. Nevertheless, it has become 
apparent that there are some challenges with the declaration 
requirement as it is written and IKEA believes Congress should improve 
and streamline the import declaration requirement. IKEA has found that 
providing genus, species and country of harvest information on a 
transactional basis even for seemingly simple wood products requires a 
tremendous amount of data to be submitted to the U.S. Government. These 
submissions are costly and administratively burdensome for both 
importers and the U.S. Government while achieving little to prevent 
illegal logging. It is IKEA's opinion that, in its current form, the 
Import Declaration process is unsustainable long term and not the best 
use of resources in the prevention of illegal logging. IKEA suggests 
that Congress consider alternative means of providing declaration 
information and we would be willing to have further discussions on this 
point to identify the best alternatives to meet the needs of 
stakeholders in the business, environmental and enforcement 
communities.
    The potential requirement of a Lacey Declaration for composite wood 
products (such as particle board and fiberboard) in the future makes 
the requirement even more untenable because composite wood products are 
generally made of byproducts such as sawdust, scraps, and other 
remnants from other manufacturing processes and therefore have a broad 
spectrum as to the potential genus, species, and countries of origin. 
While this type of materials reuse is positive from a recycling and 
sustainability perspective, it makes collection of useful data for the 
declaration requirement virtually impossible. IKEA also believes that 
the declaration requirement should not apply to composite products 
until it is determined that it is feasible, practical and effective to 
gather such information. However, we would like to underline that this 
should not in any way reduce the responsibility of the importer to 
exercise due care in procurement.
Due Process
    The heart of the Lacey Act Amendments is the prohibition against 
the importation of products containing illegally-harvested wood or 
plant material, which the U.S. Department of Justice and the Fish and 
Wildlife Service enforce through criminal and civil penalties and 
seizure and forfeiture of merchandise. To avoid possible civil and 
criminal penalties, importers must exercise proper due diligence in 
their supply chains to ensure their products do not contain illegally-
harvested wood or plant material.
    The Lacey Act Amendments specifically state that seizures are 
governed by the Civil Asset Forfeiture Reform Act (CAFRA), which 
provides due process for parties to present their case and facts to 
petition through a legal process for return of government-seized 
property.\1\ At the time of its passage, some Members of Congress made 
it clear that inclusion of this language would make this remedy 
available under the Lacey Act Amendments.\2\
---------------------------------------------------------------------------
    \1\ 16 U.S.C. sec. 3374(d).
    \2\ Commenting on addition of the CAFRA language, Senator Richard 
Burr (R-NC) said:
      It is crucial, that as this legislation is implemented, a clear 
distinction be drawn between ``innocent'' owners in the supply chain 
who in good faith trade in wood products that they believe to be 
legally harvested abroad, and those who knowingly traffic in illegal 
material. It is the concern of Congress that this line be clearly drawn 
when prosecutions occur under this act.
---------------------------------------------------------------------------
    In practice, however, the enforcing agencies have nullified 
Congress' intent by treating as contraband wood and plants alleged to 
be illegally harvested. As a result, the Lacey Act Amendments have 
become a strict-liability law--an importer may exercise the highest 
degree of due care in complying with the law, yet still have its 
products seized with no legal recourse or due process. Therefore, IKEA 
believes that Congress should provide for a legal means for importers 
to address illegal logging allegations, forfeitures and seizures and 
preserve the rights of appeal in a court of law.
Retroactivity
    While IKEA is not directly impacted, on behalf of the NRF and RILA 
membership we represent here today, we recommend that any change to the 
current law should correct an omission found in the original Lacey Act 
Amendments--the lack of language limiting retroactive application of 
the law. As recommended in consensus statements issued by U.S. 
businesses and environmental NGO's, Congress should clarify that the 
Lacey Act Amendments do not apply to antiques and other products 
containing wood or plant material harvested or manufactured prior to 
May 22, 2008, when the Lacey Act Amendments went into effect. Since the 
provenance of the wood and plant material in these products cannot be 
verified, this change is logical and non-controversial.
Scope of Foreign Laws and Regulations
    The scope of the Lacey Act Amendments is also an issue. The law 
defines ``illegal taking'' of trees or plants broadly to include any 
foreign law or regulation that protects wood or plants, limits their 
export or transshipment, or regulates the manner in which they are 
taken, including required authorization and payment of taxes or 
fees.\3\ In practice, this definition is open to wide interpretation 
that sweeps in laws and regulations having little or no connection to 
conservation and preservation of trees and plants. As a result, 
importers have little clarity in exercising their due diligence 
obligations as to what foreign laws and regulations would be applied 
under the Lacey Act Amendments, creating a greater degree of 
uncertainty, especially when dealing with a strict-liability statute.
---------------------------------------------------------------------------
    \3\ 16 U.S.C. sec. 3372(a)(2)(B).
---------------------------------------------------------------------------
    Therefore, Congress should clarify the Lacey Act Amendments to give 
businesses better guidance on which foreign laws and regulations may 
give rise to a violation, by specifying that applicable foreign laws 
and regulations be directed to the preservation or conservation of 
trees and plants. This clarification would exclude laws and regulations 
that have little or no relationship to this goal, such as export 
restrictions designed to protect manufacturing or processing in the 
country of export. This change would also improve enforcement and 
compliance by directing efforts in ways that truly advance the policy 
objectives of the law.
Current Legislation
    The current bills in the House--Tennessee Congressman Cooper's 
RELIEF Act \4\ and Georgia Congressman Broun's FOCUS Act \5\--have 
raised awareness of Members of Congress and the public to the practical 
challenges related to the Lacey Act Amendments. However, neither of 
these bills would adequately address these challenges, and in order to 
be credible, any change needs to be supported by the environmental 
community.
---------------------------------------------------------------------------
    \4\ H.R. 3210.
    \5\ H.R. 4171.
---------------------------------------------------------------------------
    We are looking for a new legislative approach that effectively 
addresses the issues of business stakeholders, stands the best chance 
of generating broad, bipartisan support in Congress and all 
stakeholders, but without undermining the very important goal to stop 
illegal logging. We believe our recommendations will achieve these 
objectives by making enforcement of the law more targeted and 
effective; encouraging the adoption of strong compliance measures by 
industry; and advancing the policy goals of the law to promote proper 
forest stewardship and conservation practices around the world.
    Thank you again for the opportunity to appear before you today.
                                 ______
                                 
    Dr. Fleming. We thank you for your testimony. Next, Ms. 
Harman. Hopefully we can get a unit that works for you. That is 
not working either. OK. I think something is not plugged in.

 STATEMENT OF DONNA A. HARMAN (H.R. 3210), PRESIDENT AND CHIEF 
    EXECUTIVE OFFICER, AMERICAN FOREST AND PAPER ASSOCIATION

    Ms. Harman. Mr. Chairman and members of the Committee, I 
appreciate this opportunity to present the views of the 
American Forest and Paper Association and its members regarding 
the Lacey Act. AF&PA is the national trade association of the 
forest products industry, representing pulp, paper, packaging 
and wood products manufacturers. Our industry accounts for 
about 5 percent of the total U.S. manufacturing GDP, and we 
produce about 190 billion in products annually, employing about 
900,000 men and women.
    The U.S. forest products industry is a strong proponent of 
stainable forest management practices in the United States and 
around the world. Last year our industry adopted a 
sustainability initiative called ``Better Practices, Better 
Planet 2020.'' This includes a specific framework to work with 
governments, industry, and other stakeholders to promote 
policies around the globe to reduce illegal logging. Illegal 
logging is not just an environmental issue. It is also a global 
economic issue.
    When illegally sourced, forest-based raw materials enter 
the stream of commerce, a global economic problem is created 
for U.S. producers of products from legally sourced raw 
materials. AF&PA commissioned a study in 2004 to assess the 
economic impact of illegal logging on timber production and 
trade. The report concluded that up to 10 percent of global 
wood products production and roughly a similar share of global 
wood products trade are of suspicious origin. The report also 
estimated that the economic cost to the U.S. forest products 
industry is approximately $1 billion per year in terms of lost 
exports and lower value of domestic shipments.
    Moreover, supplying wood and paper products that are 
derived from sustainable and legal sources of raw materials is 
what our customers demand. Without a sustainable supply of 
legally harvested wood, our very existence and jobs we provide 
are at risk. Because illegal logging is a global issue, the 
U.S. industry needs the involvement of government to help 
ensure that our markets are not a haven for products from 
illegal timber harvest. For these reasons, we believe it is 
appropriate for the U.S. to have laws that prevent illegally 
harvested raw materials from entering U.S. commerce.
    The 2008 amendments brought heightened international 
awareness to the illegal logging issue, and introduced a strong 
incentive throughout the global supply chain to ensure the 
legality of forest products. Already, we are seeing the effects 
of the law. The hardwood sector of our industry is seeing a 
pickup in demand for U.S. hardwoods, not only from domestic 
customers, but also from buyers in Asia, who are reportedly 
looking for hardwoods from reliable and legal sources. Many 
U.S. hardwood timber mills are small, family owned businesses, 
like Glen Oak Lumber Company whose CEO, Tom Talbot, is in the 
audience today.
    The Lacey Act provides significant economic benefits to 
American rural businesses and jobs. While the 2008 Lacey Act 
amendments have accomplished much good, the implementation has 
not been problem-free. We have been working with many 
organizations to develop consensus recommendations, and to help 
streamline and clarify the requirements for compliance with the 
Lacey Act. The following are AF&PA's recommendations.
    First and foremost, the Administration was mandated by 
Congress to produce a report on implementation issues within 2 
years of passage of the 2008 amendments. We urge members of 
this Committee to formally request that the implementing 
agencies provide a short-term date certain for the release of 
this report. Second, the declaration report requirement is an 
important tool in ensuring that businesses along the supply 
chain from harvesting to manufacturers, brokers, importers, and 
retailers become part of the solution through joint action. The 
declaration for pulp and paper is on hold, but we hope that by 
working with APHIS and other stakeholders it can be 
implemented.
    Third, we believe the Lacey Act amendments should not apply 
to plants and plant products manufactured or imported prior to 
the enactment of the 2008 amendments.
    Fourth, Federal agencies should issue clear guidance that 
enforcement action will not be taken against individual 
consumers. There is no precedent in the Lacey Act's long 
enforcement history of the government targeting end users of 
individual products.
    Finally, Congress should provide adequate funding for 
Federal agencies responsible for carrying out the Lacey Act 
mandate. It is critical to ensure the full implementation of 
this Act.
    The Lacey Act is an important tool for protecting forests 
around the world and combating international trade and 
illegally taken plant and plant products, including wood and 
paper. As with any other law, there is room for improvement in 
the manner in which the Act is being implemented and enforced. 
We believe that the first thing the Federal agencies need to do 
is issue their report on the implementation and operation of 
the Lacey Act amendments. If it is determined that the Act does 
not provide sufficient administrative authority and legislative 
changes are still needed, we would be glad to work with the 
Congress to implement technical changes that would improve the 
effectiveness of the Lacey Act. Senators Lamar Alexander and 
Ron Wyden are currently leading such a process and we would 
welcome a bipartisan and bicameral effort for identifying areas 
of agreement on how to move forward with improving and 
strengthening the Lacey Act's implementation. Thank you very 
much for the opportunity to present our views.
    Dr. Fleming. Thank you, Ms. Harman.
    [The prepared statement of Ms. Harman follows:]

   Statement of Donna Harman, President and Chief Executive Officer, 
                  American Forest & Paper Association

    I appreciate this opportunity to present the views of the American 
Forest and Paper Association (AF&PA) and its members regarding H.R. 
3210, the Retailers and Entertainers Lacey Implementation & Enforcement 
Fairness (RELIEF) Act and H.R. 4171, the Freedom from Over-
Criminalization and Unjust Seizures Act (FOCUS) Act of 2012.
    AF&PA is the national trade association of the forest products 
industry, representing pulp, paper, packaging, and wood products 
manufacturers and forest landowners. Our companies make products 
essential for everyday life from renewable and recyclable resources 
that sustain the environment. The forest products industry accounts for 
approximately 5 percent of the total U.S. manufacturing GDP. Industry 
companies produce about $190 billion in products annually and employ 
nearly 900,000 men and women, exceeding employment levels in the 
automotive, chemicals, and plastics industries. The industry meets a 
payroll of approximately $50 billion annually and is among the top 10 
manufacturing sector employers in 47 states.
    The U.S. forest products industry is a strong proponent of 
sustainable forest management practices in the U.S. and around the 
world and is committed to using forest management and manufacturing 
practices that meet environmental, social, and economic objectives. Our 
customers rely on us as the foundation of their supply chain to ensure 
that the products we sell are produced in a legal and sustainable 
manner.
    Building on its legacy of sustainability, the U.S. forest products 
industry last year set sustainability goals called ``Better Practices, 
Better Planet 2020.'' The initiative recognizes the importance of 
procurement of our primary raw material (wood) from sustainable 
sources. It includes a specific commitment to increase the amount of 
fiber procured from certified sources in the U.S. and to work with 
governments, industry, and other stakeholders to promote policies 
around the globe to reduce illegal logging.
    Our industry is sympathetic to the concerns of committee members 
about over-regulation and its effects on jobs and the economy. We know 
firsthand about well-intentioned laws that, when implemented, result in 
unforeseen or unintended consequences. American paper and wood products 
manufacturers are facing over twenty major regulations from EPA's Clean 
Air Act alone. Many of these regulations could be written in much less 
burdensome ways and still produce equivalent or better environmental 
benefits. Boiler Maximum Achievable Control Technology (MACT) is just 
one of the rules adding to the cumulative regulatory burden. Although 
most boilers already are well controlled for key pollutants, EPA's 
Boiler MACT Rule will require more than 90% of boilers to make 
significant changes. Our estimated capital cost for the reproposed rule 
is $4 billion, plus billions more in operating costs. We expect 
thousands of forest products jobs will be affected by the final Boiler 
MACT Rule unless further changes are made to the final rule. The U.S. 
forest products industry operates in a fiercely competitive global 
marketplace. Increasingly, the competition in our sector is coming from 
developing countries with lower environmental and forest management 
regulations than those to which we adhere in the U.S. We believe that 
the cumulative regulatory burden our industry is facing is placing the 
competiveness of our industry and its workers at risk.
    While very little illegal logging occurs in North America, this is 
not the case around the globe. Conversion of forest land to agriculture 
is the primary cause of deforestation in developing countries and 
illegal logging also contributes to overexploitation and unsustainable 
forest management. Illegal logging is not just an environmental issue--
it is also a global economic issue. When illegally sourced forest-based 
raw materials enter the stream of commerce, a global economic problem 
is created for U.S. producers of products from legally sourced raw 
materials. For these reasons, we believe it is appropriate for the U.S. 
to have laws that prevent illegally harvested raw materials from 
entering into U.S. commerce.
    By its very definition, it is difficult to get a good estimate of 
the economic cost of illegal logging. The World Bank estimated in a 
2006 report that illegal logging costs developing countries some $15 
billion in lost assets and revenue. In addition, legitimate companies 
around the world involved in the forest products trade are losing 
billions of dollars in revenue annually due to market distortions 
caused by illegally harvested wood and wood products entering world 
markets.
    AF&PA commissioned its own study in 2004 to assess the economic 
impact of illegal logging on timber production and trade to better 
inform the industry's policy. The report concluded that up to 10 
percent of global wood products production and a roughly similar share 
of global wood products trade are of suspicious origin. The report also 
estimated that eliminating global illegal logging would increase U.S. 
wood exports by over $460 million per year and increase the value of 
U.S. domestic shipments by $500-700 million annually.
    Controlling illegal logging has been a bipartisan effort. Early on, 
President George W. Bush's Administration recognized that illegal 
logging could not be controlled at the source alone because of weak 
governance and enforcement structures in timber-rich developing 
countries, together with corruption, poverty, and poor incentives to 
maintain land as forests. The administration understood that global 
cooperation on effective forest management was necessary to protect 
American economic and trade interests--such as the ability of the U.S. 
forest products industry to compete on a level playing field. In 2003, 
the Bush Administration launched the President's Initiative Against 
Illegal Logging. The international initiative, a result of 
collaborative efforts involving the administration, industry, and non-
governmental organizations aimed to assist developing countries in 
their efforts to combat illegal logging, including the sale and export 
of illegally harvested timber, and to fight corruption in the forest 
sector. The administration followed that with separate memoranda of 
understanding with Indonesia and China on combating illegal logging and 
associated trade. U.S. government officials continue to have bilateral 
meetings with their counterparts to address illegal logging issues. 
More recently, illegal logging has received broader attention in the 
Asia Pacific Economic Cooperation forum.
    In addition to government-to-government actions to control illegal 
logging, AF&PA recognized that international trade needs to be used as 
a complementary tool to create the political will to make policy 
improvements and enforce changes on the ground in high-risk countries. 
To that end, AF&PA was an active participant in a unique stakeholder 
coalition comprising the forest products industry, labor, environmental 
organizations, and importer groups, who worked together for the 
Congressional passage of the 2008 amendments to the Lacey Act.
    The 2008 amendments passed with bi-partisan Congressional support. 
The amendments make it unlawful to import, export, transport, sell, 
receive, acquire, or purchase in interstate or foreign commerce any 
plants or products--including wood and paper--made of plants that are 
taken or traded in violation of the laws of a federal, state, or 
foreign law. The plants or products are considered illegally sourced 
when they are stolen, taken from officially protected or designated 
areas, taken without or contrary to the required authorization or on 
which appropriate royalties, taxes, or stumpage fees have not been 
paid, or are subject to export bans.
    The amendments also require importers to file a declaration 
identifying the country of harvest, the genus and species of plants 
contained in the products, and the unit of measure. The declaration 
requirement, administered by the Animal and Plant Health Inspection 
Service (APHIS) of the U.S. Department of Agriculture, already applies 
to imports of certain solid wood products but has not yet been phased-
in to composite wood products or to pulp and paper, among others.
    The 2008 Lacey Act Amendments brought heightened international 
awareness to the illegal logging issue and introduced a strong 
incentive throughout the global supply chain to ensure the legality of 
forest products. The Chatham House, a UK-based nonprofit on 
international and current affairs, has documented welcome reductions in 
illegal logging or trade over the past few years, and enacting the 
Lacey Act Amendments has been part of the reason.
    Closer to home, we are hearing from the hardwood sector of our 
industry that it is seeing a pickup in demand for U.S. hardwoods not 
only from domestic customers but also from buyers in the Far East who 
reportedly are looking for hardwoods from reliable and legal sources. 
Many U.S. hardwood timber mills are small, family-owned businesses so 
the Lacey Act provides significant economic benefits to American rural 
businesses and jobs.
    Nonetheless, implementation has not been problem free. As is the 
case with other laws, the government and the private sector learn from 
each other about implementation realities. Our industry has worked 
within a wide coalition including importers, industry, environmental 
groups, labor organizations, retailers, and others to develop consensus 
recommendations to the federal agencies on implementation of the Lacey 
Act Amendments. The consensus group provided the federal agencies with 
two sets of detailed documents (in 2009 and 2010) encouraging the 
agencies to use their rulemaking authority to clarify and streamline 
the requirements for industry to comply with the Lacey Act. As recently 
as August 2011, the consensus group submitted a joint statement to 
APHIS proposing a process for addressing outstanding technical issues. 
Unfortunately, the Administration has been slow to act on these 
recommendations and many of the problems persist.
    The following are AF&PA's recommendations:
          First and foremost, the administration was mandated 
        by Congress to produce a report on implementation issues within 
        two years of passage of the 2008 amendments. This report has 
        still not been completed. Without the report, it is difficult 
        for Congress and private sector stakeholders to assess whether 
        the understanding of the outstanding implementation issues are 
        best resolved administratively or by legislative changes. We 
        urge members of this committee to formally request that the 
        implementing agencies provide a short-term date certain for the 
        release of the report so that Congress and the public may have 
        access to the information needed to determine the best course 
        of action for solving the identified problems with 
        implementation.
          We believe that the declaration requirement is an 
        important tool in ensuring that businesses all along the supply 
        chain--harvesting operations, manufacturers, brokers, 
        importers, and retailers--become a part of the solution through 
        joint action. The idea behind the 2008 amendments was not a 
        heavy-handed government system of regulation, but a requirement 
        that put the burden on the supply chain to exercise due care in 
        knowing where the raw material is coming from.
           However, the implementation of the declaration requirement 
        is a work in progress. Several paper companies that have 
        implemented internal fiber tracking systems have told AF&PA 
        that it will be very difficult to identify the genus and 
        species of the wood fiber they use at their paper mills on a 
        shipment-by-shipment basis. Typically, their wood fiber comes 
        from low-risk North American sources. In anticipation of the 
        eventual phase-in of the declaration requirement to pulp and 
        paper, AF&PA is working with its member companies to identify 
        alternatives that will provide flexibility for the reporting of 
        the genus and species of fiber used at pulp and paper mills 
        without degrading the utility of the declaration.
          AF&PA believes that the Lacey Act Amendments should 
        not apply to plants and plant products manufactured or imported 
        prior to the enactment of the amendments. We agree that it is 
        unreasonable to expect importers to obtain complete supply 
        chain information retroactive to pre-May 2008. Specific 
        language could be developed by stakeholders that would preclude 
        unintended gaps.
          Federal agencies should issue clear guidance that 
        enforcement action will not be taken against individual 
        consumers. There is no precedent in the Lacey Act's long 
        enforcement history of the government targeting end users of 
        individual products.
          Finally, we believe that adequate funding for federal 
        agencies responsible for carrying out the Lacey Act mandate is 
        critical to ensure the full implementation of the act. This 
        should include funding for international programs that educate 
        foreign governments and businesses on how to comply with the 
        Lacey Act.
    Recent reports about enforcement actions taken by the U.S. Fish and 
Wildlife Service have generated media and political attention to the 
Lacey Act Amendments. We believe effective enforcement is essential to 
combating illegal logging. We do not have the information necessary to 
comment on the particulars of any specific enforcement action, but we 
do know that enforcement of the law provides a strong deterrent to 
illegal behavior. Should this Committee decide changes are needed, we 
would urge that the changes be made administratively, if possible, 
before legislative changes are contemplated and that care should be 
taken to ensure that any changes do not undermine the legitimate 
economic and environmental goals of the 2008 Lacey Act Amendments.
H.R. 3210, the Retailers and Entertainers Lacey Implementation and 
        Enforcement Fairness (RELIEF) Act
    We do not support H.R. 3210 in its current form and are concerned 
that it sidesteps the administrative review process set out in the 
original 2008 amendments. The Secretary of Agriculture was mandated to 
produce a report to Congress within two years of the enactment of the 
amendments. That report was intended to provide factual information on 
the implementation and enforcement of the declaration requirement and 
address some of the questions before the committee today. Without this 
report, Congress and the business community do not have a common set of 
information on which to make decisions about whether the implementation 
issues can be addressed administratively or require legislative 
changes. The net effect of legislation without this information may be 
to undermine the goals of the 2008 amendments. We believe H.R. 3210 
could diminish the effectiveness of the 2008 Lacey Act Amendments.
          Limitation on application of the Lacey Act's 
        declaration requirement to ``solid wood''--We are concerned 
        with the proposed exclusion of non-solid wood products from the 
        Lacey Act. As we indicated above, AF&PA supports the phase-in 
        of the declaration to pulp and paper but seeks to work with 
        APHIS to address the difficulties in identifying the genus and 
        species of the fiber used to produce each shipment of pulp and 
        paper. The U.S. imports pulp and paper from regions of the 
        world that are known to have inadequate enforcement of logging 
        practices. Reasonable efforts can and should be taken in supply 
        chain management to ensure that illegally sourced raw material 
        is not used widely. The U.S. is one of the largest markets for 
        paper in the world and its requirements will set the standard 
        for production in many developing countries where there might 
        otherwise not be an incentive for good environmental practices.
          Application of the Lacey Act to items imported only 
        for commerce--We do not object to this general idea, but 
        believe it is best dealt with through regulatory guidance. The 
        guidance would need to be carefully crafted, however, so that 
        it does not allow for the operation of off-shore firms that can 
        supply individual Americans with wood products that would 
        otherwise be in violation of the Lacey Act. A broad brush 
        statutory change may not reflect the precision that will be 
        required to prevent the creation of more unintended 
        consequences.
          ``Innocent Owner'' Defense--H.R. 3210 seeks to 
        eliminate the limitation on the ``innocent owner'' defense 
        currently inherent in the Lacey Act. Plants and plant products 
        imported in violation of the Lacey Act are treated as stolen 
        goods so in effect are contraband subject to forfeiture by the 
        government. We believe that the threat of forfeiture serves as 
        a strong deterrent but more study may be in order.
          Review and report--We believe that the creation of a 
        public database on ``all'' foreign laws from which plants and 
        plant products are exported should be explored. However, such a 
        government database should be considered for guidance only and 
        should not be intended to replace the exercise of due care 
        required for compliance with the Lacey Act. Already, the Forest 
        Legality Alliance and other groups have developed databases to 
        assist the trade in identifying foreign laws that could be 
        covered by the Lacey Act. The foundation of the 2008 amendments 
        was a public-private partnership where companies are 
        responsible for asking questions of their suppliers to 
        reasonably know that the raw material they are procuring comes 
        from legal sources.
          Standard certification process for plant and plant 
        products--We are concerned with the level of government 
        intervention in the marketplace that this might entail. We also 
        are concerned that this proposal could lead to a requirement 
        for third-party forest certification, which has the potential 
        to discriminate against U.S.-based certification programs. We 
        also note that a majority of small family forest owners in the 
        U.S. are not third-party certified, and thus, could not meet 
        such a requirement. These forests are, however, sustainably 
        managed and harvested according to the laws of the U.S. Care 
        was taken in the drafting of the 2008 amendments to ensure that 
        any future regulations imposed by other countries to mirror our 
        Lacey Act Amendments would not be harmful to U.S. exports of 
        wood and paper products.
H.R. 4171, the Freedom from Over-Criminalization and Unjust Seizures 
        Act (FOCUS) Act of 2012
    The 2008 Lacey Act Amendments reinforce and support the laws of 
other countries concerning the management and trade of plants and plant 
products. As stated above, a Lacey Act violation is triggered by laws 
concerning the way plants and plant products are taken, possessed, 
transported, imported, or exported. Bans and restrictions on exports of 
raw materials such as logs and sawnwood are common laws in tropical 
countries and are directly linked to forest management and protection 
efforts. In countries where corruption is common or where there is weak 
governance, these laws are an important tool in controlling large 
exports of illegally logged timber.
    In addition to supporting foreign forest governance efforts, 
another important objective underlying the Lacey Act Amendments was to 
level the playing field for legitimate American producers of forest 
products. We believe that the Lacey Act is meeting that objective and 
that the elimination of the violation of foreign laws as a basis of 
prosecution will eviscerate the Lacey Act.
    In conclusion, given that the U.S. is the largest importer of 
forest products, with proper implementation and enforcement, the Lacey 
Act is an important tool for protecting forests around the world and 
controlling international trade in illegally taken plants and plant 
products, including wood and paper. By fighting illegal logging, the 
Lacey Act also is leveling the competition in the international wood 
market. We have received reports that many Asian manufacturers of wood 
products are returning to U.S. hardwood to avoid sourcing from 
questionable suppliers. This helps in preserving and growing jobs in 
U.S. communities.
    As with any other law, there is room for improvement in the manner 
the act is being implemented and enforced. We believe that first thing 
the federal agencies need to do is issue their report on the 
implementation and operation of the Lacey Act Amendments. If it is 
determined that the act doesn't provide sufficient administrative 
authority and legislative changes are still needed, we would be glad to 
work with Congress to implement technical changes that would improve 
the effectiveness of the Lacey Act.
                                 ______
                                 
    Dr. Fleming. And next up, we have Mr. Rey. You have 5 
minutes, sir.

   STATEMENT OF THE HON. MARK REY (H.R. 3210 AND H.R. 4171), 
FORMER UNDER SECRETARY OF AGRICULTURE FOR NATURAL RESOURCES AND 
         THE ENVIRONMENT, ON BEHALF OF CLIMATE ADVISORS

    Mr. Rey. Thank you, Chairman Fleming and members of the 
Subcommittee for allowing me to present my views. I am 
testifying today on behalf of Climate Advisors, an 
environmental consulting firm. I am also and adjunct faculty 
member at the Michigan State University School of Agriculture 
and Natural Resources. Prior to these positions, I served under 
President George W. Bush for nearly 8 years as U.S. Department 
of Agriculture as the Under Secretary for Natural Resources and 
the Environment. In that capacity, I oversaw the work of the 
U.S. Forest Service and participated in the development of the 
2008 Lacey Act amendments.
    I want to start by commending the Subcommittee for 
convening this hearing. The implementation of new statutory 
programs is almost never flawless, and this is not an exception 
to that, and congressional oversight of agency implementation 
decisions are crucial.
    With the Subcommittee's permission I would also like to 
submit for the record a statement from Former Deputy Secretary 
of the Interior, Lynn Scarlett concerning the ecological and 
economic impacts of illegal logging, as well as the efforts of 
the George W. Bush Administration to remedy this situation, 
including the bipartisan enactment of the 2008 Lacey Act 
amendments. And I would be happy to answer any questions about 
Secretary Scarlett's statement for the record as well as my 
own.
    [The prepared statement of former Deputy Secretary of the 
Interior Lynn Scarlett follows:]

         Statement submitted for the record by Lynn Scarlett, 
        Former Deputy Secretary, U.S. Department of the Interior

    Thank you Mr. Chairman, Mr. Ranking Member, and members of the 
committee for the opportunity to share my experience and views on the 
Lacey Act, illegal logging and its impact on natural resources and the 
economy. I am currently a Visiting Scholar at Resources for the Future. 
Prior to this position, I spent nearly 8 years at the U.S. Department 
of the Interior, including nearly 4 years as Deputy Secretary during 
the Administration of President George W. Bush. It is through that lens 
that I offer my comments.
    The extension of the 100-year-old Lacey Act in 2008 to apply to 
illegally harvested timber was an internationally significant 
milestone. Through passage of the 2008 amendments, the United States 
became the first nation in the world to enact an enforceable ban on the 
importation of illegally harvested timber. Through a bipartisan effort, 
the Bush Administration supported this addition to the Act. Indeed, 
passage of these new provisions to the Act was the culmination of an 
effort against illegal logging by the Bush Administration during nearly 
the entire 8 years of the Administration. The effort engaged 
Republicans, Democrats, the timber industry, labor, and the 
conservation community.
    Before turning the ``how'' of this multi-year effort, consider a 
few observations on the ``why'' of this focus on illegal logging. 
Multiple motivations spurred the efforts to address illegal logging. 
Banning commerce in illegally harvested timber benefits the U.S. and 
global economies, protects the environment, and benefits local 
communities in areas afflicted by these illegal activities. Addressing 
illegal logging brings win-win-win results.
    In terms of the economy, the American Forest & Paper Association 
estimates that illegal logging costs U.S. businesses over $1 billion 
per year in lost sales opportunities and lower prices to U.S. timber 
companies. The industry had identified commerce in illegally harvested 
timber as a significant international issue.
    The ban on commerce in illegally harvested timber is also good for 
the environment. Very preliminary estimates indicate an apparent drop 
of around 22 percent in illegal timber activities since the U.S. and 
other nations began to target such activities. These include illegal 
activities associated with deforestation and unsustainable harvesting 
practices in some developing countries. They include timber harvesting 
in areas designated by countries as national parks and other protected 
areas, some of which sustain populations of highly endangered species.
    The Lacey Act provisions also benefit local communities. Illegal 
logging can undermine local economic activities linked to healthy 
forestlands and often depriving local and national governments of 
revenues. The World Bank estimated in 2006 that timber harvested 
illegally worldwide, from public lands alone, resulted in lost assets 
and revenues of more than $10 billion annually in developing countries. 
Illegal activities also shift economic opportunities away from local 
communities and deprive them of a voice in management of resources 
linked to these communities.
    These details provide the ``why'' behind the effort to amend the 
Lacey Act. But these efforts were the culmination of a series of other 
measures undertaken by the Bush Administration. As early as 2002, the 
Bush Administration had identified commerce in illegally harvested 
timber as a significant problem. President Bush asked Secretary of 
State Colin Powell to develop an initiative to help developing 
countries stop illegal logging practices. Secretary Powell launched the 
initiative in 2003, announcing its four main features. These included: 
good governance and capacity building of legal regimes and enforcement 
practices; community-based actions to strengthen local economic 
opportunities; technology transfers; and strengthening of market forces 
and institutions to ensure accurate timber source reporting, 
transparent practices, and so on.
    The initiative generated significant benefits in the Congo, 
Southeast Asia, Central America and the Amazon. But, ultimately, the 
Administration recognized the key role the Lacey Act could play in 
reinforcing the goals of the initiative to stem illegal logging.
    The Bush Administration testified in favor of application of the 
Lacey Act to commerce in illegal logging in 2007. I offer a couple of 
observations drawn from that testimony (See Statement of Eileen Sobeck, 
Deputy Assistant Attorney General, Environment and Natural Resources 
Division, U.S. Department of Justice, before the Subcommittee on 
Fisheries, Wildlife, and Oceans, Committee on Natural Resources, U.S. 
House of Representatives, Concerning H.R. 1497, Legal Timber Protection 
Act, October 16, 2007). The Administration's testimony underscored that 
the Lacey Act provisions under consideration were not about policing 
other nations. Rather, the focus was on recognizing foreign laws by 
prohibiting commerce in illegally harvested timber and timber products. 
In short, the provisions were based in enhancing international 
cooperation and reciprocal respect among nations. The provisions were 
consistent with 100 years of laws pertaining to wildlife under the 
Lacey Act.
    There was another critical part of the discussion about the Lacey 
Act provisions. Prior to the Bush Administration's testimony, the 
Justice Department undertook a review of other laws and concluded that 
these laws were inadequate to address trade in illegally harvested 
timber. Amending the Act was viewed by the Administration as essential 
to addressing this illegal harvesting problem.
    As I conclude my remarks, I want to go back to the beginning--the 
issue of benefits. The Lacey Act provisions on illegal harvesting of 
timber benefit U.S. businesses, the environment, and local communities 
in areas currently affected by illegal logging activities. The Act 
creates an even playing field. It is good for U.S. companies that 
operate legally in the United States and abroad. But its success 
depends on its continuation and implementation. Like many statutes, 
translation from statute to action involves putting in place procedures 
and building blocks. Such processes always involve a learning curve and 
some iterative adjustments. The remedy to any perceived implementation 
challenges resides in addressing those specific issues--not in undoing 
a statute that is, fundamentally, about reducing fraud and respecting 
the rule of law in the United States and abroad.
                                 ______
                                 
    Mr. Rey. Passage of the bipartisan 2008 Lacey Act 
amendments have so far produced very dramatic and positive 
results as well as some of the problems that have already been 
discussed. As you have been told, illegal logging has decreased 
by 22 percent worldwide, and in some countries, by as much as 
50 to 70 percent in only a couple of years' time. There is, as 
you have also been told, some evidence that as companies seek 
assurances that their timber supply is legal, they are either 
keeping operations in the United States, or moving them back 
here to get that assurance. There is also evidence that forest 
products importers are taking new steps to ensure their wood 
comes from legal sources.
    The Lacey Act has also had a significant international 
impact, inspired, in part, by the 2008 amendments; the European 
Union passed similar legislation in 2010, and Australia and 
several other developing countries are considering similar 
legislation. It is imperative that as we work to oversee the 
implementation of the 2008 amendments, and see what changes, if 
any, are necessary, that this progress not be halted.
    Unfortunately, we come to the conclusion that H.R. 3210 
would unnecessarily weaken implementation of the 2008 
amendments. The Act's advocates have primarily framed the 
legislation as a narrow fix for the music industry. The effect 
of enactment of the RELIEF Act, however, would be much more 
sweeping and would have other effects outside of the music 
industry.
    It, for instance, removes the declaration requirement for 
nonsolid wood. As you have just been told, pulp and paper alone 
constitutes more than half of the dollar value of forest 
products imports into the United States. It weakens penalties 
for noncompliance, even though for 112 years, the Lacey Act has 
been constructed to work primarily through deterrence. And it 
eliminates the possibility of confiscation, as is normal with 
other stolen goods.
    H.R. 4171, would unfortunately return the American wood 
producers to the unfair trade regime that existed prior to the 
enactment of the 2008 amendments. Those amendments are designed 
to reinforce and support the laws of other countries concerning 
the management and plant--the management and trade of plants 
and plant products, and that is what has put American wood 
producers back on a level playing field.
    As has been indicated already, the implementation of the 
2008 amendments has not been flawless. The 2008 amendments 
require a report from Congress that was to be delivered--a 
report to Congress, I am sorry, that was to be delivered in 
2010, and that report is still unavailable. So the first place 
to start, it seems to me, is to get that report up here, review 
it critically, and then decide what changes need to be made and 
whether those changes need to be administrative changes or 
legislative changes.
    So I will conclude by, again, commending you, Mr. Chairman, 
and the members of the Subcommittee for this important 
congressional oversight effort. I would hope that your 
attention today, and in the future, spurs agency actions. Such 
actions need to be, to respond to and remedy legitimate 
implementation concerns that have been raised to date. And it 
is my judgment that most of those can be done administratively. 
Thank you.
    Dr. Fleming. Thank you, Mr. Rey.
    [The prepared statement of Mr. Rey follows:]

   Statement of Mark Rey, Former Under Secretary of Agriculture for 
  Natural Resources and the Environment, on behalf of Climate Advisors

    Thank you Mr. Chairman and members of the Subcommittee for allowing 
me to present my views on the implementation of the Lacey Act, and on 
H.R. 3210, the Retailers and Entertainers Lacey Implementation and 
Enforcement Fairness Act (RELIEF Act), and H.R. 4171, the Freedom From 
Criminalization and Unjust Seizure Act (FOCUS Act).
    I am testifying today on behalf of Climate Advisers, a consulting 
firm that provides scientific, technical, and policy advice to 
government and non-government organizations. I am also an adjunct 
faculty member of the Michigan State University School of Agriculture 
and Natural Resources. Prior to this position, I served under President 
George W. Bush for nearly 8 years at the U.S. Department of Agriculture 
as the Undersecretary of Agriculture for Natural Resources and the 
Environment. In this capacity, I oversaw the work of the U.S. Forest 
Service and participated in the development of the 2008 Lacey Act 
Amendments.
    I commend the Subcommittee for convening this hearing. The 
implementation of new statutory programs is seldom flawless, and 
Congressional oversight of agency implementation decisions is crucial.
    I would like to submit for the record a statement from former 
Deputy Secretary of the Interior Lynn Scarlett concerning the 
ecological and economic impacts of illegal logging, as well as the 
efforts of the George W. Bush Administration to remedy this situation, 
including the bipartisan enactment of the 2008 Lacey Act Amendments. 
After briefly recounting some of the positive effects of these 
amendments, I will focus the balance of my remarks on H.R. 3210 and 
H.R. 4171.
Impacts of the 2008 Amendments to Date
    Passage of the bipartisan 2008 Amendments and the limited 
enforcement actions undertaken so far have produced dramatic and 
positive results. According to a report by Chatham House, the Lacey Act 
has helped reduce illegal logging by at least 22 percent globally, with 
reductions as high as 50-70% in some key countries. That is the 
equivalent of at least a one billion ton reduction in greenhouse gas 
emissions from deforestation, achieved without the implementation of 
any new taxes. Chatham House estimated the cost of the greenhouse gas 
reductions achieved through the reduction in illegal logging ranges 
between seven cents and $2.48 per metric ton, providing one of the most 
affordable examples of reduced greenhouse gas emissions.
    There is some evidence that, as companies seek assurances that 
their timber supply is legal, they are either keeping operations in the 
United States or moving them back here. Indeed, the Lacey Act may be a 
factor in the dramatic reversal of the U.S. trade deficit in forest 
products with China, which went from a $20.6 billion deficit in 2006 to 
a $600 million surplus in 2010. We should look at this success as a 
model to build upon.
    There is also significant anecdotal evidence that forest products 
importers are taking new steps to ensure their wood comes from legal 
sources. In the guitar industry alone, Taylor and Martin guitar 
companies have both said they have worked to bring their operations 
into Lacey Act compliance, and wood importers, large and small, in all 
the industries that use forest products have made huge strides in 
ensuring the compliance of their operations.
    The Lacey Act has also had significant international impact. 
Inspired in part by the 2008 Lacey Act Amendments, the European Union 
passed a similar regulation in 2010, and Australia and several other 
countries are considering similar legislation. Earlier this year, the 
United Nations recognized the Lacey Act with a silver medal as one of 
the world's three most effective forest conservation policies. The law 
has also been recognized by political leaders of forest nations, which 
are grateful for the support it provides them in their efforts to 
reduce illegal logging. According to the World Bank, illegal logging 
costs forest nations $10 billion a year in lost assets and revenues 
from permits and other sources.
H.R. 3210 Would Unnecessarily Weaken Implementation of the 2008 
        Amendments
    The RELIEF Act's advocates have primarily framed the legislation as 
a ``narrow fix'' that primarily affects the music industry. They have 
focused much of their arguments on the idea that individual musicians 
could be targeted for Lacey Act enforcement for crossing international 
boundaries, even if they are just carrying instruments with illegal 
wood that was purchased before the Lacey Act amendments were passed in 
2008. The Fish and Wildlife Service and the Justice Department have 
repeatedly clarified that individuals are not targets for enforcement: 
``Individual consumers and musicians are not the focus of any U.S. Fish 
and Wildlife Service law enforcement investigations pertaining to the 
Lacey Act, and have no need for concern about confiscation of their 
instruments by the U.S. Fish and Wildlife Service,'' FWS wrote in a 
recent statement.
    The effect, however, of enactment of the RELIEF Act would be far 
more sweeping, and would be likely to have much greater impact outside 
the music industry. The key provisions are:
          Removes the declaration requirement for ``non-solid 
        wood.'' This exempts the pulp, paper, and composites industry 
        from the key requirement of the Lacey Act--that they know where 
        their wood is coming from. Pulp and paper alone constitute more 
        than half of the dollar value of forest products imports into 
        the United States.
          Weakens penalties for non-compliance. The bill would 
        remove most of the deterrent effect of the penalties by 
        lowering them to traffic ticket levels of $250 for ``first 
        offenses.'' Given limited enforcement resources, the Lacey Act 
        was constructed to work primarily through deterrence, rather 
        than through widespread issuance of small fines.
          Eliminates possibility of confiscation. The bill 
        wouldn't make illegally logged goods subject to confiscation, 
        as is normal with other stolen goods--removing another 
        significant deterrent to illegal logging.
    A broad coalition has assembled to oppose the RELIEF Act, including 
major environmental groups, unions, and almost the entire U.S. forest 
products industry. Groups opposing the legislation include: Blue Green 
Alliance, American Forest & Paper Association, Environmental 
Investigation Agency, Hardwood Federation, Greenpeace, National Wood 
Flooring Association, League of Conservation Voters, National Alliance 
of Forest Owners, Natural Resources Defense Council, Sierra Club, The 
Field Museum, American Hardwood Lumber Association, United States Green 
Building Council, United Steelworkers, Wildlife Conservation Society, 
World Wildlife Fund, Union of Concerned Scientists, the American 
Hardwood Export Council, and many others.
H.R. 4171 Would Return American Wood Producers to an Unfair Trade 
        Regime
    The 2008 Lacey Act Amendments are designed to reinforce and support 
the laws of other countries concerning the management and trade of 
plants and plant products. A Lacey Act violation is triggered by laws 
concerning the way plants and plant products are taken, possessed, 
transported, imported, or exported. Bans and restrictions on exports of 
raw materials are common in tropical countries and are directly linked 
to forest management and protection efforts. In countries where 
corruption is common or where there is weak governance, these laws are 
an important tool in controlling large exports of illegally logged 
timber.
    In addition to supporting improved global forest governance, a 
longstanding pillar of U.S. trade policy, another important objective 
underlying the Lacey Act Amendments was to level the playing field for 
legitimate American producers of forest products. We believe that the 
Lacey Act is meeting that objective, and that the elimination of the 
violation of foreign laws as a basis for prosecution will threaten the 
enormous benefits of the Lacey Act.
    The implementation of the 2008 Amendments has not been flawless. 
The 2008 Amendments required a report from the Administration on 
implementation issues to be delivered to Congress in 2010. That report 
is still unavailable. A broad coalition of importers, manufacturers, 
retailers, labor unions, and environmental organizations has been 
meeting and developing consensus recommendations to the federal 
agencies involved in Lacey Act implementation. Unfortunately, the 
agencies have been slow to act on two sets of consensus recommendations 
submitted thus far.
    One of the top areas for improvement would be the establishment of 
an electronic database at the Animal Plant Health Inspection Service 
(APHIS) with the associated capacity to more easily and quickly process 
importer declarations. Creating this resource will enable APHIS to 
clear legal shipments (which constitute the overwhelming majority of 
imports), while focusing on the small number of shipments that merit 
further investigation. This will help legitimate importers to do 
business at the speed they require in order to compete. The key to 
addressing this gap is providing sufficient funding to APHIS of 
approximately $5.5 million to develop the database. Also needed are 
sufficient resources for Fish and Wildlife Service and Department of 
State implementation (including providing technical assistance to the 
industry for implementation). We recommend a total of $13.5 million for 
these purposes. Although the federal budget is tight, the Lacey Act is 
producing results on a larger scale than most other international 
conservation programs, and should be prioritized for funding within 
existing budget constraints.
    I commend the Subcommittee for this important Congressional 
oversight effort, and hope that the Subcommittee's attention spurs 
agency action. Such action needs to respond to, and remedy, the 
legitimate implementation concerns that have been raised to date. It is 
my judgment that these concerns can be resolved administratively.
                                 ______
                                 
    Dr. Fleming. Next, Mr. Gardner for 5 minutes.

 STATEMENT OF ADAM GARDNER (H.R. 3210 AND H.R. 4171), FRONTMAN 
          OF GUSTER, FOUNDER AND CO-DIRECTOR OF REVERB

    Mr. Gardner. Thank you. Good afternoon, Mr. Chairman, and 
distinguished members of the Committee, my name is Adam 
Gardner. I am a frontman of the band Guster, and the Founder 
and Co-Director of an organization called Reverb, a nonprofit 
that educates and engages musicians and their fans to take 
action toward a more sustainable future.
    Since 2004, Reverb has greened more than 115 top-selling 
major national musicians tours. I come here today to represent 
a large swath of high-profile musicians who care deeply about 
their direct impact on the environment, social inequalities, 
and the economy. Creating musical instruments like guitars, 
violins and pianos depends on the availability of materials 
like tone woods. These precious woods are running out and the 
jobs that depend on them are under severe threat because of 
illegal logging. Resilient rosewood which was ubiquitous in 
guitars and other stringed instruments is now under imminent 
threat of extinction because of illegal logging. The black 
market trade in these goods severely undermines efforts to 
revitalize and sustainably harvest these tree populations.
    In response, many instrument manufacturers have taken 
important steps to ensure that their wood is both legal and 
sustainable. Referring to Lacey, Taylor Guitars' CEO Bob Taylor 
says: ``It is very simple. We now investigate the sources of 
our wood and we ensure to the best of our ability that the wood 
was taken legally. The cost isn't so much for us, it is not an 
unbearable added burden, and we are happy to do extra 
administrative work.''
    Similarly, Chris Martin, Chairman and CEO of Martin Guitars 
stated last year: ``I think the Lacey Act is a wonderful thing. 
Illegal logging is appalling. It should stop. And if this is 
what it takes, unfortunately, to stop unscrupulous operators, I 
am all for it.''
    But just as the Lacey Act is starting to work, we are being 
presented with both the FOCUS Act, that would remove any 
criminal liability and the need to comply with foreign laws, 
and the so-called RELIEF Act, which proponents would like you 
to believe is a surgical fix to the Lacey Act. The reality is 
much different.
    The RELIEF Act's sweeping provisions would remove almost 
all key deterrents to illegal logging. The changes being 
proposed would mostly benefit the commercial agenda of big 
Asian timber conglomerates that have long opposed the Lacey 
Act. The RELIEF Act provisions would exempt pulp and paper from 
the core requirements of the Lacey Act as we already heard many 
times today, even though they comprise more than half of forest 
product imports. The bill would also lower fines for import of 
illegally logged wood to the meaningless level of a traffic 
ticket, just $250 for first offenders, even if that first 
offense involves a container-sized shipment of illegally 
sourced forest products worth hundreds of thousands of dollars. 
And perhaps most surprisingly, the bill would allow for 
businesses to keep the profit from wood that has been proven to 
be stolen.
    This runs counter to all other U.S. law and I would argue 
against the very core of American ethic. In other words, if 
someone came in your house, stole your TV and sold it to 
someone else, wouldn't you expect the authorities to return 
your property to you rather than allow the criminals who stole 
it to keep it and sell it?
    The same should be true for wood. As for musicians, let's 
set the record straight. Lacey does not pose a threat to 
musicians. A number of misleading claims have been raised by 
RELIEF advocates that are simply not true. First, no individual 
has ever been investigated or had their instrument taken under 
the Lacey Act. Moreover, the U.S. Government itself has said it 
is not after individual musicians.
    Second, the Lacey Act does not ban the purchase of rare 
types of wood, nor traveling with them. It simply bans trade in 
illegal wood products. The only relief H.R. 3210 provides is to 
illegal loggers, while leaving musicians and other consumers 
with burdensome doubt about the legality and sustainability of 
the wood products we use.
    By contrast, the Lacey Act provides comforting assurance to 
conscientious consumers like myself, that the wood I am buying 
in my instruments or elsewhere is legally sound. The need for 
keeping Lacey strong was further underscored by the recent 
murder of Cambodian conservationist Chut Wutty who was killed 
while working to expose illegal logging of rosewood.
    No musician I know wants to play an instrument that is made 
from wood stolen from a national park or harvested using slave 
and child labor and violence. That is why a number of prominent 
musicians have signed a pledge to support the Lacey Act and 
oppose current efforts to weaken it, which Ranking Member 
Markey submitted for the record earlier today. These artists 
includes, Bonnie Raitt, David Crosby, Willie Nelson, Dave 
Matthews Band, Jack Johnson, Maroon 5, Jason Mraz, Bob Weir, 
Pat Simmons of the Doobie Brothers, Barenaked Ladies, Dispatch, 
Fun, My Morning Jacket, Of a Revolution, Razia Said, my band 
Guster and my organization, Reverb. This is in addition to over 
40,000 sign-ons to a similar petition early this year. And as 
word spreads across the music industry, more are sure to add 
their names and voices in support of Lacey Act.
    Chairman Fleming and honorable Members of Congress, please 
listen to the voices of American musicians and keep the U.S. on 
a path of defending forests, the law, American forest products, 
and a sound future for music. Thank you.
    Dr. Fleming. Thank you, Mr. Gardner.
    [The prepared statement of Mr. Gardner follows:]

            Statement of Adam Gardner, Frontman of Guster, 
                   Founder and Co-Director of Reverb

    Good afternoon. My name is Adam Gardner, and I'm the frontman of a 
band called Guster and the founder and co-director of Reverb, a non-
profit organization that educates and engages musicians and their fans 
to take action toward a more sustainable future. Since 2004, Reverb has 
worked with over 60 top-selling artists on greening more than 115 tours 
and over 1800 concert events. We've achieved a reduction of nearly one-
hundred thousand tons of carbon emissions, partnered with over 2,500 
environmental organizations, and have reached an estimated 14.5 million 
fans with our message. We believe in using the musician's voice to 
create change, which is why I am providing testimony today on this very 
critical issue for our forests, climate, and planet.
    Great music transports us to the sublime, where we can forget the 
banal tugs of the physical world. But the ability to create ethereal 
symphonies and emotionally raw thrasher solos alike rests on the 
availability of some very physical materials, most notably the prized 
tonewoods that give guitars, violins, pianos, and dozens of other 
instruments their immediately recognizable timbre. Unfortunately, these 
precious woods are running out and the availability of those materials 
and the jobs that depend on them are under severe threat because of 
illegal logging.
    For instance, Brazilian Rosewood, once ubiquitous in guitars and 
other stringed instruments, was loved nearly to death: because of 
illegal logging, this species is now under imminent threat of 
extinction. Efforts to revitalize dwindling tree populations and manage 
their harvest sustainably are severely undermined by the black market 
trade in these goods. The effects can be seen in illegal logging 
hotspots like Madagascar and Indonesia: tugged by the lure of quick 
profits, illegal logging gangs bribe officials to gain access to 
national parks and other protected areas, pillage the valuable species, 
and sometimes feed themselves by hunting endangered ``bushmeat'' like 
lemurs.
    The human consequences are no less devastating. Revenue from 
illegal logging and export trade supports and perpetuates corruption 
and criminal activities, and is reaped in an atmosphere of fear, 
intimidation and human rights abuses. Illegal logging in some countries 
has been used to finance violent conflicts--much like the ``blood 
diamonds'' that funded wars in West Africa--while in others it is 
linked with wildlife and drug smuggling operations.
    As a result of this threat to sources of tonewoods, many individual 
instrument manufacturers have taken important steps to ensure that 
their wood is both legal and sustainable. Speaking about Taylor 
Guitars' response to Lacey, Bob Taylor says, ``It's very simple. We now 
investigate the sources of our wood, and we ensure to the best of our 
ability that the wood was taken legally. We fill out the paperwork 
required and we present our business as an open book. The cost isn't so 
much for us. It's not an unbearable added burden, and we're happy to do 
the extra administrative work.'' Similarly, Chris Martin, Chairman and 
CEO of Martin Guitars stated last year, ``I think [the Lacey Act] is a 
wonderful thing. Illegal logging is appalling. It should stop. And if 
this is what it takes unfortunately to stop unscrupulous operators, I'm 
all for it.''
    The law is delivering impressive results. According to a recent 
report from Chatham House (the UK's equivalent of the Council on 
Foreign Relations), the Lacey Act has helped reduce illegal logging 
globally by a whopping 22 percent, as companies around the world take 
steps to ensure their supplies come from legal sources. The United 
Nations recently recognized the Lacey Act as one of the world's three 
most effective forest conservation laws, and the European Union passed 
similar legislation after seeing Lacey's outsize success.
    But just as the Lacey Act is starting to work, we are being 
presented with the FOCUS act that would remove any criminal liability 
and the need to comply with foreign laws, and the so-called RELIEF Act, 
which proponents would like you to believe is a surgical ``fix'' to the 
Lacey Act. The reality is much different.
    The RELIEF Act's provisions would remove almost all the key 
deterrents to illegal logging; those things that are really bringing 
about change on the ground and in the trade. They are so far reaching 
that they would completely undermine the law's effectiveness in 
preventing deforestation as well as threaten U.S. jobs by allowing 
cheap illegal imports to undercut local products. The changes being 
proposed would mostly benefit the commercial agenda of big Asian timber 
conglomerates that have long opposed the Lacey Act. The revised 
provisions would exempt pulp and paper from the core requirements of 
the Lacey Act, even though these products comprise more than half of 
forest products imports. The bill would also lower fines for import of 
illegally logged wood to the meaningless level of a traffic ticket--
just $250 for ``first offenders,'' even if that first offense involves 
a container-size shipment of illegally-sourced forest products.
    The rationale that RELIEF advocates put forth for these sweeping 
changes is that Lacey poses a threat to musicians. This is simply not 
the truth. Let's set the record straight on a number of misleading 
claims that have been raised: First, no individual has ever been 
investigated or had their instrument taken under the Lacey Act. 
Moreover, the U.S. government itself has said it's not after individual 
musicians. Second, the Lacey Act does not ban the purchase of rare 
types of wood, nor travelling with rare types of wood; it simply bans 
trade in illegal wood products. Third, the government has made 
allowance in the declaration for musical instruments or other products 
manufactured prior to May 22, 2008 to declare them as pre-2008 
material, without the specifics usually required by the declaration.
    In effect H.R. 3210 only provides ``relief'' to illegal loggers 
while leaving musicians and other consumers of wood products with 
burdensome doubt about the legality and sustainability of the wood 
products we use. By contrast, the Lacey Act provides comforting 
assurance to conscientious consumers like myself that the wood I am 
buying in my instruments or elsewhere is legally sound.
    No musician I know wants to play a guitar, violin, or piano made 
from illegal wood, wood stolen from a national park, or harvested using 
slave and child labor. In fact, the musicians I know through Reverb's 
work are doing as much as they can to make the products and practices 
of their music as earth-friendly as possible, from fueling their tour 
busses with sustainably produced biodiesel to offering organic 
merchandise to fans. There is no more obvious product than the 
instrument itself through which we express our music. The musicians I 
know are committed to ensuring sustainable practices so future 
generations also have access to the tonewoods that provide the rich 
sounds that make music great.
    Reverb has recently created a formal coalition of these like-minded 
musicians called the Green Music Group. Since learning about the recent 
challenges to the Lacey Act, a number of prominent musicians have 
signed a pledge to support the Lacey Act and oppose current efforts to 
weaken it. The pledge reads as follows:
        Widespread illegal logging is placing at risk the wood we 
        treasure in our musical instruments, and thus the future of 
        music as we know it. As musicians dedicated to our art and to 
        protecting the earth's natural resources, we call on everyone 
        involved in the sourcing, crafting and production of musical 
        instruments to join us in our commitment to eliminate all trade 
        in illegally logged timber and forest products. We will not buy 
        a new instrument without asking where the wood comes from and 
        if it was harvested legally and sustainably.

        We support the Lacey Act and other laws that prohibit trade in 
        illegally sourced wood and we oppose the efforts currently 
        underway to weaken the Lacey Act. We urge lawmakers, suppliers 
        and craftsmen to ensure that our art has a positive impact on 
        the environment rather than contributing to forest destruction. 
        We call on our fellow musicians to do the same.
    The following musicians signed on within 48 hours of learning about 
the threat to the effective implementation and enforcement of the Lacey 
Act:
        Bonnie Raitt
        David Crosby
        Willie Nelson
        Maroon 5
        Jason Mraz
        Bob Weir
        The Barenaked Ladies
        Brad Corrigan of Dispatch
        Pat Simmons of the Doobie Brothers
        Ray Benson of Asleep At The Wheel
        The Cab
        Of A Revolution (O.A.R)
        Ryan Dobrowski and Israel Nebeker of Blind Pilot
        Razia Said
        Rob Larkin
        My band, Guster
        And my organization, Reverb
    This is in addition to over 40,000 sign-ons to a petition called 
``Musicians Against Illegal Logging'' last January. Having worked on 
initiatives within the music industry for a while, I can say that this 
is quite an enthusiastic showing of support to have such quick 
responses from bands of this caliber. And as word spreads across the 
music industry, more are sure to add their names and voices in support 
of the Lacey Act.
    U.S. leadership to combat illegal logging in this way has been 
impressive. It is has taken away a market that was historically ``no 
questions asked''--and other consuming nations are following the U.S. 
lead.
    Chairman Fleming and honorable members of Congress: please listen 
to the voices of America's musicians and keep the U.S. on a path of 
defending forests, the law, American forest products, companies with 
ethical wood sourcing, and a sound future for music.
    Thank you.
                                 ______
                                 
    Dr. Fleming. And last, we have Mr. Rubinstein. You, sir, 
have 5 minutes.

  STATEMENT OF REED D. RUBINSTEIN (H.R. 3210 AND H.R. 4171), 
   PARTNER, DINSMORE & SHOHL, LLP, UNITED STATES CHAMBER OF 
             COMMERCE'S INSTITUTE FOR LEGAL REFORM

    Mr. Rubinstein. Thank you, Mr. Chairman, good afternoon. 
Good afternoon, Ranking Member Sablan and members of the 
Subcommittee. My name is Reed Rubinstein. I am a partner in the 
Washington, D.C. office of Dinsmore & Shohl. For 25 years, I 
have practiced environmental and administrative law, defending 
individuals and companies in Federal, civil, and criminal 
enforcement matters. I have also served as the U.S. Chamber of 
Commerce's Senior Counsel for Environment, Technology, and 
Regulatory Affairs, and as an adjunct professor of 
environmental law at the Western New England School of Law.
    I am testifying today on behalf of the U.S. Chamber 
Institute for Legal Reform. ILR promotes civil justice reform 
through legislative, political, judicial and educational 
activities at the National, State, and local levels. The U.S. 
Chamber is the world's largest business federation representing 
the interest of more than 3 million businesses and 
organizations of every size, sector and region. ILR strongly 
supports the Lacey Act's important fish, wildlife, and plant 
conservation goals. However, the statute is deeply flawed and 
reform is needed. To begin with, the Act is an exemplar for the 
vice of overcriminalization. It lacks a meaningful mens rea, 
wrongful intent requirement. Instead, it uniquely imposes 
vicarious criminal and civil liability on American citizens for 
violations of a vast unchartered universe of foreign laws, 
regulations, decrees, and ordinances.
    As enforced, American musicians, fishermen, and florists 
are deemed to know all potentially applicable foreign 
requirements and then required to guess at the risk of their 
liberty and property how these requirements will be interpreted 
by both foreign, and U.S. regulators.
    This offends basic principles of due process, equity, and 
prudence without materially advancing the Act's purposes. Also, 
when Congress amended the Lacey Act in 2008 and enacted 16 USC 
Section 3374(d), it did on so protect innocent owner's right 
under the Civil Asset Forfeiture Reform Act, or CAFRA, these 
rights to recover properties seized by the government under 
Lacey. Congress did this to account for the practical 
compliance difficulties, created by its 2008 expansion of Lacey 
liability to plants and plant products, and to cure a 2005 
Ninth Circuit ruling striking CAFRA's innocent owner 
affirmative defense because the court there deemed all 
properties seized by the government under Lacey at all times to 
be contraband.
    The government continues to apply the punitive Ninth 
Circuit rule, but punishing objectively blameless persons who 
act with due care has not been proven to materially enhance the 
Act's protection of endangered fish, wildlife, or plants, and 
it is inconsistent with basic U.S. legal norms.
    ILR believes that Congress should reform the Lacey Act to 
cure these serious flaws. Therefore, it applauds Representative 
Cooper for introducing the RELIEF Act, and Representative Broun 
for introducing the FOCUS Act. These bills demonstrate that 
there is bipartisan support both for a congressional hard look 
at the Act, and for implementation of the commonsense reforms 
needed to remedy the Act's unintended consequences.
    As a general matter, ILR believes that Congress' hard look 
should include whether the Act includes an adequate wrongful 
intent requirement; appropriately defines both the guilty act, 
and the intent required in specific and unambiguous terms; 
provides a clear statement whether the intent requirement 
applies to all elements of the offense, or if not, which mens 
rea terms apply to which elements of the offense.
    And finally, whether or not the Act sets proper limits on 
the delegated criminal law making authority of regulators. At a 
minimum, ILR believes that Congress should cabin the foreign 
laws that Lacey jeopardy triggers to provide Americans with 
fair notice of prohibited conduct, and to prevent arbitrary and 
discriminatory enforcement and prosecution. Also, Congress 
should solve the contraband issue by explicitly providing that 
innocent owners, as defined by CAFRA, may recover their 
property. Both the FOCUS Act and the RELIEF Act should play an 
important role in the Lacey reform process.
    The FOCUS Act addresses the overcriminalization and due 
process problems by striking foreign law references and 
criminal sanctions, but retains the due care standard for civil 
liability, which seems adequate, appropriate, and beneficial in 
this context.
    The RELIEF Act provides useful language for finally solving 
the contraband issue so that innocent owners are entitled to 
CAFRA's protections. This is not something new. This is what 
Congress intended in 2000 when it enacted CAFRA, and then 
amended Lacey in 2008 to provide such protection. And this is 
what Congress intended and it is time now to finish the job.
    The Lacey Act deserves congressional support, let us be 
clear. And Congress can do this best by ensuring that the Act 
is properly aligned with our most fundamental legal norms and 
values. Thank you for your attention.
    [The prepared statement of Mr. Rubinstein follows:]

 Statement of Reed D. Rubinstein, Esq., Partner, Dinsmore & Shohl LLP, 
 on behalf of the U.S. Chamber of Commerce's Institute for Legal Reform

    Good afternoon, Chairman Fleming, Ranking Member Sablan, and 
members and staff of the Subcommittee on Fisheries, Wildlife, Oceans 
and Insular Affairs. I am Reed D. Rubinstein, a partner in the 
Washington, D.C. office of Dinsmore & Shohl, LLP. For twenty-five 
years, I have practiced environmental and administrative law, defending 
individuals and companies in federal civil and criminal enforcement 
matters. I also have served as the U.S. Chamber of Commerce's Senior 
Counsel for Environment, Technology and Regulatory Affairs, and as an 
adjunct professor of environmental law at the Western New England 
School of Law.
    I am testifying today on behalf of the U.S. Chamber's Institute for 
Legal Reform (``ILR'') in support of Lacey Act reform. ILR promotes 
civil justice reform through legislative, political, judicial and 
educational activities at the national, state and local levels. The 
U.S. Chamber is the world's largest business federation, representing 
the interests of more than three million businesses and organizations 
of every size, sector, and region.
I. SUMMARY
    ILR strongly supports the Lacey Act's important fish, wildlife and 
plant conservation goals. \1\ However, the statute is deeply flawed. To 
begin with, the Act is an exemplar for the vice of over-
criminalization. It lacks a meaningful mens rea (wrongful intent) 
requirement, instead imposing vicarious criminal and civil liability on 
American citizens for violations of a vast, uncharted universe of 
foreign laws, regulations, decrees and ordinances.\2\ As enforced, 
American musical instrument makers, fishermen, and florists are deemed 
to ``know'' all potentially applicable foreign requirements and then 
required to guess, at the risk of their liberty and property, how these 
requirements will be interpreted by both foreign and U.S. regulators. 
This offends basic principles of due process, equity and prudence.\3\
---------------------------------------------------------------------------
    \1\ 18 U.S.C. Sec. Sec. 42--43; 16 U.S.C. Sec. 3371 et seq.
    \2\ That these foreign ``laws'' lack a direct nexus to fish, 
wildlife or plant conservation, or provide only for civil fines, or 
even are ruled invalid and retroactively repealed by the government 
that enacted them in the first instance, is of no moment. See generally 
United States v. McNab, 324 F.3d 1266, 1268 (11th Cir.) cert. denied 
540 U.S. 1177 (2004); United States v. Lee, 937 F.2d 1388, 1393 (9th 
Cir.) cert. denied 502 U.S. 1076 (1992).
    \3\ See generally City of Chicago v. Morales, 527 U.S. 41 (1999); 
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
---------------------------------------------------------------------------
    Also, Congress enacted 16 U.S.C. Sec. 3374(d) to protect innocent 
owners' rights under the Civil Asset Forfeiture Reform Act (``CAFRA'') 
\4\ to recover property seized by the government under Lacey. Congress 
did this to account for the practical compliance difficulties created 
by its 2008 expansion of Lacey liability to plants and plant products, 
and to cure a 2005 Ninth Circuit ruling striking CAFRA's innocent owner 
affirmative defense because it deemed all property seized by the 
government under Lacey to be ``contraband.'' \5\ However, the 
government continues to apply the punitive Ninth Circuit rule. 
Punishing objectively blameless persons who act with due care has not 
been proven to materially enhance the Act's protection of endangered 
fish, wildlife or plant populations, and is inconsistent with basic 
U.S. legal norms.
---------------------------------------------------------------------------
    \4\ 18 U.S.C. Sec. Sec. 981, 983(d)(1).
    \5\ See Testimony of Craig Foster, Legal Timber Protection Act: 
Hearing on H.R. 1497 Before the Subcomm. on Fisheries, Wildlife and 
Oceans of the H. Comm. on Natural Resources, 110th Cong. at 55 
(2007)(discussing compliance barriers and explaining that ``it is 
necessary to understand that long supply chain and the fact that there 
are many people along that supply chain. . .I cannot audit the entire 
supply chain. . .Criminal behavior is criminal behavior. All I can do 
is work with the best of my knowledge''); United States v. 144,774 
Pounds of Blue King Crab, 410 F.3d 1131 (9th Cir. 2005).
---------------------------------------------------------------------------
    ILR believes that Congress should reform the Lacey Act to cure 
these serious flaws. Therefore, it applauds Rep. Cooper, for 
introducing H.R. 3210 (the ``RELIEF Act''), and Rep. Broun, for 
introducing H.R. 4171 (the ``FOCUS Act''). These bills demonstrate that 
there is bipartisan support both for a Congressional ``hard look'' at 
the statute and for implementation of the common-sense reforms needed 
to remedy the Act's unintended consequences.
    As a general matter, ILR believes the ``hard look'' at Lacey should 
include whether the Act: (1) includes an adequate mens rea requirement; 
(2) appropriately defines both the actus reus (guilty act) and the mens 
rea of the offense in specific and unambiguous terms; (3) provides a 
clear statement of whether the mens rea requirement applies to all the 
elements of the offense or, if not, which mens rea terms apply to which 
elements of the offense; and (4) sets proper limits on the delegated 
criminal lawmaking authority of regulators.\6\ At a minimum, ILR 
believes that Congress should cabin the foreign laws that are Lacey 
jeopardy ``triggers'' to provide Americans with fair notice of 
prohibited conduct and to prevent arbitrary and discriminatory 
enforcement and prosecution. Also, Congress should solve the contraband 
issue by explicitly providing that innocent owners, as defined by 
CAFRA,\7\ may recover property seized by the government under Lacey.
---------------------------------------------------------------------------
    \6\ See generally Walsh & Joslyn, Without Intent: How Congress Is 
Eroding the Intent Requirement in Federal Law 26--31 (2010) available 
at http://www.nacdl.org/withoutintent/(accessed May 3, 2012).
    \7\ 18 U.S.C. Sec. Sec. 983(d)(2)--(3).
---------------------------------------------------------------------------
II. DISCUSSION
A. Lacey Act Background
    Passed by Congress in 1900, the Lacey Act was the first federal 
wildlife protection law. In its initial iteration, the Act supported 
state game animal and bird protection efforts by prohibiting the 
interstate shipment of wildlife killed in violation of state or 
territorial law, requiring wildlife to be clearly marked when shipped 
in interstate commerce, banning the importation of certain animals 
(including English sparrows) that could harm U.S. crop production and 
authorizing the federal government to preserve and restore game bird 
populations.\8\ Amendments in 1935 prohibited interstate commerce in 
wildlife captured or killed in violation of any federal or foreign law. 
Amendments in 1945 banned the importation of wildlife under ``inhumane 
or unhealthful'' conditions.\9\ Amendments in 1981 diluted the mens rea 
requirement from ``willfully'' to ``knowingly.'' \10\ And, amendments 
in 2008 criminalized the import, export, transport, sale, receipt, 
acquisition or purchase of any plant or plant product taken, possessed, 
transported or sold in violation of any domestic or foreign law.\11\
---------------------------------------------------------------------------
    \8\ U.S. Fish & Wildlife Service, ``Nation Marks Lacey Act 
Centennial, 100 Years of Federal Wildlife Law Enforcement,'' available 
at http://www.fws.gov/pacific/news/2000/2000-98.htm (accessed May 2, 
2012).
    \9\ Id.
    \10\ See Lacey Act Amendments of 1981, Pub. L. 97-79.
    \11\ 16 U.S.C. Sec. 3372(a)(2).
---------------------------------------------------------------------------
B. Lacey Act Structure
    The Lacey Act uniquely subjects American citizens to domestic 
jeopardy for the violation of a foreign sovereign's enactments.\12\ 16 
U.S.C. Sec. 3373 imposes strict civil and criminal liability for 
conduct ``in violation of, or in a manner unlawful under, any 
underlying law'' that is ``prohibited'' by the Act, subject only to a 
``due care'' defense. Section 3372(a)(2) prohibits any person to 
``import, export, transport, sell, receive, acquire, or purchase in 
interstate or foreign commerce'' any fish or wildlife ``taken, 
possessed, transported or sold in violation of. . .any foreign law,'' 
and plants ``taken, possessed, transported or sold in violation of. . 
.any foreign law''' including laws governing the payment of appropriate 
royalties, taxes or stumpage fees and ``the export or transshipment'' 
thereof. Section Sec. 3371(d) defines ``law'' to mean ``laws, treaties, 
regulations or Indian tribal laws which regulate the taking, 
possession, importation, exportation, transportation, or sale of fish 
or wildlife or plants.''
---------------------------------------------------------------------------
    \12\ United States v. McNab, 324 F.3d 1266, 1274 (Fay, J. 
dissenting) (``the Lacey Act, by its very terms, is dependent upon the 
laws of a foreign sovereign''), cert. denied 540 U.S. 1177 (2004). As 
the Deputy Assistant Attorney General for Environment and Natural 
Resources Division of the U.S. Department of Justice testified in 2007:
    One unique feature of the Lacey Act is that it allows the 
incorporation of foreign law as an underlying law or predicate offense 
that ``triggers'' a Lacey Act violation. . .The law or regulation must 
be of general applicability, but may be a local, provincial, or 
national law. The defendant need not be the one who violated the 
foreign law. . .However, the defendant must know or, in the exercise of 
due care, should know, about its [violation].
    See Testimony of Eileen Sobeck Before the Subcommittee on 
Fisheries, Wildlife and Oceans, Committee on Natural Resources, U.S. 
House of Representatives Concerning H.R. 1497 at 4 (Oct. 16, 2007) 
available at http://naturalresources.house.gov/uploadedfiles/
sobecktestimony10.16.07.pdf (accessed May 2, 2012).
---------------------------------------------------------------------------
    Lacey Act civil liability and criminal penalties attach when ``in 
the exercise of due care'' a defendant ``should know'' that the fish, 
wildlife or plants were taken in violation of the underlying law.\13\ 
The Act does not define ``due care.'' The legislative history states 
that ``[d]ue care simply requires that a person facing a particular set 
of circumstances undertakes certain steps which a reasonable man would 
take to do his best to insure that he is not violating the law.'' \14\ 
No clarifying regulations have been issued by any enforcing federal 
agency.\15\ However, in 2010, the United States Department of 
Agriculture Animal and Plant Health Inspection Service identified 
``Tools to Demonstrate Due Care'' in a PowerPoint presentation.\16\ 
These included ``asking questions,'' ``compliance plans,'' ``industry 
standards,'' ``records of efforts,'' and, helpfully, ``changes in above 
in response to practical experiences.'' \17\
---------------------------------------------------------------------------
    \13\ See 16 U.S.C. Sec. 3373.
    \14\ Lacey Act Amendments of 1981, S. Rep. No. 97-123, 97th Cong., 
1st Sess. 10-12 (1981); 1981 U.S.C.C.A.N. 1758-59. The Committee 
explained:
    [D]ue care means that degree of care which a reasonably prudent 
person would exercise under the same or similar circumstances. As a 
result, it is applied differently to different categories of persons 
with varying degrees of knowledge and responsibility. For example, zoo 
curator's [sic], as professionals, are expected to apply their 
knowledge to each purchase of wildlife. If they know that a reptile is 
Australian and that Australia does not allow export of that reptile 
without special permits, they would fail to exercise due care unless 
they checked for those permits. On the other hand, the airline company 
which shipped the reptile might not have the expertise to know that 
Australia does not normally allow that particular reptile to be 
exported. However, if an airline is notified of the problem and still 
transships the reptile, then it would probably fail to pass the due 
care test.
    Id.
    \15\ Tanczos, A New Crime: Possession of Wood--Remedying the Due 
Care Double Standard of the Revised Lacey Act, 42 Rutgers L. J. 549, 
567 (2011).
    \16\ U.S.Dep't of Agric., Lacey Act Primer 20 (April 2010) 
available at http://www.aphis.usda.gov/plant_health/lacey_act/
downloads/LaceyActPrimer.pdf (accessed May 3, 2012).
    \17\ Id. As one environmental group has correctly noted, ```Lacey 
compliance' is not defined by any one document, checkbox, due diligence 
system or due care check-list, and do not expect the U.S. government to 
provide that.'' EIA, Setting the Story Straight--The U.S. Lacey Act: 
Separating Myth from Reality 2 (2010) available at http://www.eia-
global.org/PDF/Report--Mythbusters--forest--Jan10.pdf (accessed May 3, 
2012).
---------------------------------------------------------------------------
C. The Lacey Act's Flaws Lead To Absurd And Unjust Results
    The Lacey Act's broad liability scheme charges Americans to know 
and ``properly'' interpret the statutory and regulatory minutiae of 
fishery, wildlife and forest management, tax, customs, logging, 
commercial and real property '' law'' in places like Indonesia, 
Vietnam, Peru and China.\18\ It then requires our citizens to 
``verify'' that foreign actors in a supply chain that may span 
countries rife with legal inefficiency, imprecision and corruption 
appropriately ``comply'' with all of these laws.\19\ Finally, the 
statute's non-existent limits on regulatory discretion empower U.S. 
regulators to ``Monday Morning Quarterback'' good faith interpretative 
and verification efforts, and then to raid and prosecute anyone whom 
the government decides has failed to measure up. This leads to absurd 
results.
---------------------------------------------------------------------------
    \18\ According to the government, ``It is the responsibility of the 
importer to be aware of any foreign laws that may pertain to their 
merchandise prior to its importation into the United States.'' See 
Animal & Plant Health Inspection Serv., U.S. Dep't of Agric., Lacey Act 
Amendments: Complete List of Questions and Answers 2 (Feb. 16, 2012) 
available at http://www.aphis.usda.gov/plant_health/lacey_act/
downloads/faq.pdf (accessed May 3, 2012)(emphasis added).
    \19\ Indonesia, for example, has over nine hundred laws, 
regulations, and decrees that govern timber exploitation, 
transportation, and trade. Saltzman, Establishing a ``Due Care'' 
Standard Under the Lacey Act Amendments of 2008, 109 Mich. L. Rev. 
First Impressions 1, 6 (2010). Further complicating the matter is the 
problem of corrupt foreign governments and regulatory ``agencies.''
    Consider, for example, the case of Bigleaf mahogany imports from 
Peru. . .Peruvian officials have. . .supplied false documentation for 
these products. . .Not only was timber being illegally harvested in 
Peru, but illegal timber was also being moved into Peru from 
neighboring countries to be laundered. . .Such ``deeply entrenched 
patronage systems'' are most often linked to political networks. . 
.Clearly, it is wrong to require U.S. importers to comply with a myriad 
of foreign laws when the governments enacting these laws not only fail 
to adhere to them, but seem to be at the very root of the problem.
    See 42 Rutgers L. J. at 572 (citations omitted); see also Henry 
Juszkiewicz, Repeal the Lacey Act? Hell No, Make It Stronger! The 
Huffington Post Green Blog (Nov. 2, 2011) available at http://
www.huffingtonpost.com/henry-juszkiewicz/gibson-guitars-lacey-
act_b_1071770.html (accessed May 5, 2012) (``The U.S. should also use 
the power of the marketplace to encourage sustainable harvesting 
practices in countries whose forestry systems are rife with graft and 
corruption'')(emphasis added).
---------------------------------------------------------------------------
    For example, on August 24, 2011, Gibson Guitar factories in 
Nashville and Memphis were raided by armed agents from the Department 
of Homeland Security and the U.S. Fish & Wildlife Service.\20\ The 
company was not accused of importing banned wood. \21\ Rather, the raid 
apparently occurred because Gibson ran afoul of a technical Indian 
regulation governing the export of finished wood products, which was 
designed to protect Indian woodworkers from foreign competition.\22\ To 
make matters worse, although the Indian government certified that the 
wood was properly and legally exported, the regulators substituted 
their own opinion to create a Lacey Act violation.\23\ To this day, the 
government refuses either to return the company's goods or to allow 
Gibson its day in court to contest the seizure.
---------------------------------------------------------------------------
    \20\ According to Juszkiewicz ``They...come in with weapons, they 
seized a half-million dollars worth of property, they shut our factory 
down, and they have not charged us with anything'', quoted on Reason 
TV, available at http://www.liveleak.com/view?i=cd2_1330024001 
(accessed May 5, 2012).
    \21\ See Affidavit of Special Agent John M. Rayfield in support of 
Search Warrant 11-MJ-1067 A, B, C, D at para.para. 15-18 (Aug. 18, 
2011) available at http://www.scribd.com/srcohiba/d/63869457-US-
Government-s-Affidavit-in-Support-of-Search-Warrant-at-Gibson-Guitar-
Factory (accessed May 4, 2012).
    \22\ Juszkiewicz, supra at note 19.
    \23\ Apparently, Gibson was advised by the U.S. government that if 
it finished its guitar fingerboards using Indian labor rather than 
Tennessee craftsman, the Lacey Act issue would not exist. Juszkiewicz, 
supra at note 19.
---------------------------------------------------------------------------
    In another notorious case, on the basis of an ``anonymous 
facsimile'' Americans were convicted and sent to prison for importing 
lobster tails from Honduras in plastic bags, rather than in boxes as 
``required'' by a Honduran ``regulation.'' Also, a ``significant number 
[of the lobsters] had a tail length that was less than the 5.5 inches 
required'' by the Hondurans for export.\24\ Although the Honduran 
government averred that the ``laws'' supposedly violated by the 
defendants were either invalid at the time of the lobster shipment or 
had been retroactively repealed, the Eleventh Circuit upheld the 
criminal convictions and ruled: ``Although Lacey Act offenses are 
predicated upon violations of [foreign] law, the statute nowhere states 
that a viable or prosecutable [foreign] law violation is necessary to 
support federal charges. . .Thus, the subsequent invalidation of the 
underlying foreign laws does not make the defendants any less culpable 
for their actions.'' \25\
---------------------------------------------------------------------------
    \24\ McNab, 324 F.3d at 1268.
    \25\ Id. at 1270 (citations omitted).
---------------------------------------------------------------------------
III. KEY LACEY ACT CONCERNS
A. The ``Over-criminalization'' Problem
    The Lacey Act is an exemplar for the vice of over-criminalization. 
``Over-criminalization'' is seen in Congressional enactments that 
expand criminal liability to individuals who hardly seem blameworthy, 
including strict liability offenses that dispense with culpable mental 
states; vicarious liability for the acts of others without some 
evidence of personal advertence; grossly disproportionate penalties 
that bear no relation to the wrongfulness of the underlying crime, the 
harmfulness of its commission, or the blameworthiness of the criminal; 
and the broad delegation of criminal enforcement authority to 
bureaucratic regulators.\26\ Such enactments corrode individual civil 
liberties.
---------------------------------------------------------------------------
    \26\ See Luna, The Overcriminalization Phenomenon, 54 American 
Univ. L. Rev. 703, 715 (2005).
---------------------------------------------------------------------------
    The Lacey Act does all of these things. It holds Americans 
vicariously liable for the violation of even the most technical foreign 
law, rule or local ordinance without evidence of personal advertence or 
intent. It penalizes without relation to the harm done by the 
``violator'' to fish, wildlife or plant populations. It criminalizes 
obscure foreign requirements, including civil customs, transportation, 
and packaging rules and even local tax or royalty ordinances, and then 
delegates unlimited prosecutorial power to federal regulators. 
Perversely, the Lacey Act unleashes the coercive power of the federal 
government not against the corrupt and lawless foreign individuals, 
companies and governments that allow, encourage or conduct poaching, 
clear-cutting and environmental degradation, but rather against 
Americans who are innocent of wrong-doing, by any common measure.
    The U.S. Supreme Court has repeatedly held that a criminal law is 
unconstitutionally vague and invalid if it fails to provide the kind of 
notice that will enable ordinary people to understand what conduct it 
prohibits, or if it authorizes or encourages arbitrary and 
discriminatory enforcement.\27\ The Court has not considered whether 
Lacey's ``foreign laws'' references pass constitutional muster. 
However, at best it is very difficult to justify the legal fiction that 
the owner of a small business in Topeka, Kansas who imports wooden-
handled brooms from China has fair notice of and understands the 
conduct prohibited by all applicable national, provincial and local 
Chinese civil and criminal laws, regulations, ordinances and 
requirements.\28\ Also, the Gibson Guitar case starkly illustrates the 
statute's inherently subjective, arbitrary and discriminatory 
enforcement regime.\29\ Although the Indian government certified that 
the wood there in question was properly and legally exported, the U.S. 
Fish and Wildlife Service substituted its own opinion and dispatched 
armed agents to raid the company.\30\ The fact that U.S. regulators can 
do such a thing certainly suggests that the Act may be tainted by a due 
process infirmity.
---------------------------------------------------------------------------
    \27\ Morales, 527 U.S. at 56 (citation omitted). As the Court held 
long ago:
    That the terms of a penal statute. . .must be sufficiently explicit 
to inform those who are subject to it what conduct on their part will 
render them liable to its penalties, is a well-recognized requirement, 
consonant alike with ordinary notions of fair play and the settled 
rules of law. And a statute which either forbids or requires the doing 
of an act in terms so vague that men of common intelligence must 
necessarily guess at its meaning and differ as to its application, 
violates the first essential of due process of law.
    Connally v. General Constr. Co., 269 U.S. 385, 391 (1925).
    \28\ The Ninth Circuit has held that the term ``foreign law'' 
enables an ordinary person to understand the prohibited conduct in a 
given case. Lee, 937 F.2d at 1395. Yet, the court did not explain how, 
exactly, American fishermen were supposed to identify or understand 
applicable Taiwanese regulations.
    \29\ ``A vague law impermissibly delegates basic policy matters to 
policemen, judges, and juries for resolution on an ad hoc and 
subjective basis, with the attendant dangers of arbitrary and 
discriminatory application.'' Grayned, 408 U.S. at 108 (citations 
omitted). The Gibson case, in which U.S. regulators rejected the Indian 
government's interpretation of Indian law, and the McNab decision, in 
which a U.S. court rejected the Honduran government's interpretation of 
Honduran law, demonstrate that Lacey Act enforcement is ``ad hoc and 
subjective'' because U.S. regulators apparently are free to interpret 
and apply foreign law as they see fit. See generally Morales, 527 U.S. 
at 41 (striking down an ordinance providing absolute discretion to 
police officers to determine prohibited ``loitering'').
    \30\ Juszkiewicz, supra at note 19.
---------------------------------------------------------------------------
B. The ``Contraband'' Problem
    In 2008, Congress amended Lacey by adding 16 U.S.C. Sec. 3374(d). 
This section states that Lacey Act forfeitures of fish, wildlife or 
plants are subject to the Civil Asset Forfeiture Reform Act 
(``CAFRA'').\31\ Among other things, CAFRA states that an innocent 
owner's interest in property shall not be forfeited under any civil 
forfeiture statute.\32\ Congress enacted Sec. 3374(d) to account for 
the practical compliance difficulties caused by Lacey liability 
expansion to plant products,\33\ and to cure a Ninth Circuit ruling in 
the case of United States v. 144,774 Pounds of Blue King Crab that 
essentially holds that all fish, wildlife or plants seized under the 
Lacey Act are ``contraband,'' nullifying the innocent owner defense in 
all such cases.\34\
---------------------------------------------------------------------------
    \31\ 18 U.S.C. Sec. 981 et seq. In 2000, Congress enacted CAFRA and 
created the ``innocent owner'' affirmative defense to cure the 
government's ``abuses of fundamental fairness'' and to ensure that 
property owners obtain adequate due process in civil forfeiture cases. 
See generally Moores, Reforming The Civil Asset Forfeiture Reform Act, 
51 Ariz. L. Rev. 777, 782--83 (2009)(citations omitted).
    \32\ 18 U.S.C. Sec. 983(d)(1). Sections 983(d)(2) and (3) set the 
criteria for proof of innocence.
    \33\ As the House Report on H.R. 1497 (subsequently enacted as 
Sec. 8204 of the Food, Conservation and Energy Act of 2008, Pub. L. 
110-246) states:
    Under Lacey, the entire supply chain handling imported plant 
material is held responsible for illegal acts of which they would have 
no reasonable expectation to know the violation much less know the 
underlying laws that exist in all foreign countries. Amending the Lacey 
Act to include reaffirmation of CAFRA provides important forfeiture 
liability protection for ``innocent owners''. . ..Recent case law had 
effectively exempted Lacey Act forfeitures from the ``innocent owner'' 
defense. . .[so] the specificity of language in H.R. 1497 and specific 
reference to CAFRA subsequent to the [Blue King Crab] case are intended 
to clearly show that it is Congress' intent to provide ``innocent 
owner'' [sic] in forfeiture proceedings under the Lacey Act.
    House Rep. 110-882, at 20-21; see also 42 Rutgers L. Rev. at 576--
78 (discussing the ``missing'' innocent owner exception under 
Lacey)(citations omitted).
    \34\ 18 U.S.C. Sec. 983(d)(4) states ``Notwithstanding any 
provision of this subsection, no person may assert an ownership 
interest under this subsection in contraband or other property that it 
is illegal to possess.'' The Ninth Circuit ruled that all property 
seized under Lacey was by definition ``illegal to possess'' and 
therefore ruled that the innocent owner affirmative defense to 
forfeiture should be stricken. Blue King Crab, 410 F.3d at 1135--36.
---------------------------------------------------------------------------
    Notwithstanding Sec. 3374(d)'s enactment, the government apparently 
still denies innocent owners the benefit of CAFRA's protection. This is 
puzzling, because to do this the government must hold, contrary both to 
controlling authorities and to the legislative history, that 
Sec. 3374(d) is superfluous.\35\ Furthermore, punishing objectively 
blameless persons who act with due care does not materially advance the 
statute's goal of fish, wildlife and plant conservation, and offends 
basic U.S. legal norms. In circumstances where an importer reasonably 
cannot have knowledge of illegality, the government's approach seems to 
directly counter what Congress intended to do via Sec. 3374(d) and 
CAFRA itself.\36\
---------------------------------------------------------------------------
    \35\ The government's position contradicts the basic canon of 
statutory interpretation that Congress does not enact superfluous 
provisions. See, e.g., Bailey v. United States, 516 U.S. 137, 146 
(1995)(citations omitted).
    \36\ 42 Rutgers L. Rev. at 578 (citations omitted); 51 Ariz. L. 
Rev. 782--83 (citations omitted).
---------------------------------------------------------------------------
IV. POTENTIAL SOLUTIONS: THE FOCUS AND RELIEF ACTS
    The Lacey Act's fish, wildlife and plant conservation goals are 
worthy and deserve strong Congressional support. Nevertheless, the 
Act's minimal mens rea threshold and its overly broad reliance on 
``foreign law'' to create domestic jeopardy require a Congressional 
remedy. At a minimum, Congress should cabin the foreign laws that serve 
as jeopardy ``triggers'' to provide Americans with fair notice of 
prohibited conduct. U.S. courts, agencies and citizens all would 
benefit from clear ``rules of the road'' to prevent arbitrary and 
discriminatory enforcement and prosecution, and companies like Gibson 
ought to be able to rely on the Indian government's interpretation of 
Indian law as a defense to Lacey liability.\37\ Additionally, the 
``contraband'' issue must be addressed to better align the Act with 
both the practical realities of the marketplace and with basic Anglo-
American legal norms.
---------------------------------------------------------------------------
    \37\ See Juszkiewicz, supra at note 19. Congress also should 
consider re-examining whether, and to what extent, the Act's broad 
criminal and civil sanctions and its minimal mens rea requirements 
actually advance its conservation goals. As Gibson CEO Juszkiewicz 
points out, limited government enforcement dollars may be better 
devoted to fighting illegal logging and poaching by bad actors, and not 
to fights with American companies that try hard to comply with the law. 
Thus, he quite reasonably suggests creation of a compliance system that 
would allow businesses to know before they buy wood and other plant 
products whether or not they are in compliance with the Act. Id.
---------------------------------------------------------------------------
    Both the FOCUS Act and the RELIEF Act should play an important role 
in the Lacey Act reform process. The FOCUS Act (H.R. 4171) addresses 
the Act's over-criminalization and due process problems by striking 
both the Act's foreign law references and its criminal sanctions.\38\ 
It retains the ``due care'' standard for civil liability and potential 
forfeiture, which seems adequate, appropriate and beneficial in this 
limited context.\39\ It also limits the reach of the Act's forfeiture 
provision to the prohibited fish, wildlife and plants only. The RELIEF 
Act (H.R. 3210), in turn, provides useful language for finally 
resolving the ``contraband'' issue so that innocent owners are entitled 
to CAFRA's protection.\40\ This is what Congress intended to do when it 
enacted 16 U.S.C. Sec. 3374(d) in 2008. It is time now to finish the 
job.
---------------------------------------------------------------------------
    \38\ H.R. 4171, Sec. Sec. 2(a), (b).
    \39\ Id. Sec. 2(c). The goal, of course, is for Congress to improve 
the Act and make its scope and application more clear without imposing 
limited, artificially rigid and commercially inadequate enforcement or 
interpretative checklists on the regulated community.
    \40\ H.R. 3210 Sec. 3(a).
---------------------------------------------------------------------------
V. CONCLUSION
    We thank you for your attention to this important matter and look 
forward to working with you.
                                 ______
                                 
    Dr. Fleming. Thank you, Mr. Rubinstein. At this point, we 
will begin Member questioning of the witnesses to allow all 
Members to participate, and to ensure we hear from all of our 
witnesses today, Members are limited to 5 minutes for their 
questions. However, if Members have additional questions, we 
can have more than one round of questioning.
    I now recognize myself for 5 minutes. This really is a 
very, very interesting, and very, very important issue that 
affects, I think, many parts of what we do as a people, and the 
laws that affect this land. I have to say that as a 
Congressman, and more so as an American, I am offended by the 
fact that the government can go in and seize someone's property 
as contraband, and that company not have its day in court, or 
that person. And with respect to considering those people as 
criminals, we are talking about Gibson Guitar, or Gibson 
Instruments, actually.
    And then, I think it was Mr. Gardner, I believe it was, you 
made reference to the fact that it would be sort of like a 
protect--in that someone going into your home and stealing your 
property and you have no way of recovering it.
    Well, that is exactly what the Federal Government is doing 
in this case, going in and raiding companies who have, at least 
in their view, and in the case of foreign countries, have 
determined that they have broken no laws, and yet things are 
taken from them, confiscated, and not returned, and not have a 
day in court.
    I am also very disturbed by the whole idea that somehow 
that A, a citizen, or a citizen company, must know the laws of 
another company--excuse me, of another country, but also must 
comply with those laws. I am very disturbed by the fact that, 
how in the world can someone operate, particularly in this 
worldwide economic environment, that a company dealing with 
vendors, dealing with other countries around the world, must 
somehow know, understand, and read all of the laws of the 
world? I find that amazing, and I would question that it is 
even constitutional.
    Ms. Harman, I have a question for you. What is the number 
of declaration documents your members filed with the APHIS in 
2011?
    Ms. Harman. Mr. Chairman, I can get you additional 
information on that. As you have heard, the pulp and paper 
products declarations have not yet come into effect as a result 
of the law, neither have the declaration requirements for 
composite wood products. So from our members, the types of 
products that our members might be importing may not yet be 
covered. But primarily, our members are in the business of 
producing products here in the U.S. They work in a global 
supply chain, and so they are concerned, and they do have 
issues around those declarations, but those issues, we think, 
are best resolved administratively, and working through a 
consensus process to develop exactly what it is that is needed.
    Dr. Fleming. To get back to my point, it is our 
understanding that there are 40,000 a month that is being 
filed.
    Ms. Harman. That may be broadly. The people who are filing 
those declaration requirements may not be my members.
    Dr. Fleming. What about, do you have any idea of the cost? 
Do you have any cost estimates as to what it is currently to 
comply, or into the future?
    Ms. Harman. Well, I think the big, I don't have a dollar 
number to give new terms of compliance. I think the biggest 
piece in the Lacey Act, and the exercise of due care, many of 
those things are things that responsible corporate citizens are 
already doing. They are asking their suppliers, they are asking 
their supply chain to verify where their raw material came 
from. Many companies have strong sustainability statements, and 
in fact, have those questionnaires.
    Dr. Fleming. Well, if it is being done at the point of 
declaration, why does it also have to be done again? It seems 
like, to me, that is a duplication.
    Ms. Harman. I am not sure I understand your question.
    Dr. Fleming. Yeah, when stuff is imported, there has to be 
a papers filled out, a declaration.
    Ms. Harman. Right.
    Dr. Fleming. And then we are talking about the additional 
filing of documents even after that, so it seems to me that is 
redundant.
    Ms. Harman. Well, the primary filing is the declaration. 
That is where you are identifying what the species and the 
genus is and where it comes from. The primary documentation is 
at the point of importation.
    Dr. Fleming. Yeah, any other witnesses would like to 
respond to that, would have anything more to add to the 
declaration process, the cost, the paperwork, et cetera?
    Mr. Rey. I think the only thing that I would add is that 
that is one of the areas where the consensus discussions have, 
I think, begun to bear the most fruit. And there are some areas 
of agreement that have been submitted to the agencies, and that 
hopefully will be reflected in the report that the agencies 
transmit to Congress, where the declaration process can be 
improved.
    I am not part of those consensus discussions, so I am not 
necessarily going to be able to give you the details, but I can 
provide some of that material for the record in terms of what 
has already been submitted to the agencies.
    Dr. Fleming. OK. Thank you. My time is up. We have one 
other Member on the dais--Dr. Harris from Maryland.
    Dr. Harris. Thank you very much, and thank you very much 
for holding this hearing, Mr. Chairman, because as you may or 
may not know, I have Paul Reed Smith Guitars in my district, 
and when I took a tour through their factory a year ago, the 
one thing we asked them how we help you with the Federal 
Government, the only word they said was Lacey.
    Anyway, let me ask you. Mr. Gardner, you testified that as 
far as you know, no individual has had their guitar seized or, 
you may not have used the term ``seized,'' but, you know, we 
live in a strange time, because I don't know if you read, you 
know, the EPA regional administrator in Texas the other day 
said, well, you know, our idea of enforcement is, you know, the 
same things the Romans used to do. Go into a little town in 
Turkey, crucify five people, everybody else complies.
    The current law doesn't stop the government from seizing 
someone's musical instrument. It is perfectly within the realm 
of the Administration. If they decide that they want to make a 
case of someone owning a guitar that may have illegally 
obtained wood in it, or abalone or some other material, is it 
your understanding the law certainly would allow the government 
to do that under the Lacey Act? I don't care whether it has 
been done before or not.
    Mr. Gardner. Yeah, obviously it hasn't.
    Dr. Harris. The government has the power to do it, don't 
they?
    Mr. Gardner. All I know I am not concerned about it. There 
has been clear statements from both the DOJ and FWS that they 
were not going after individuals. There is clear history of 
this not happening and other laws like this, where it is not 
practical for them to go after individuals with limited 
resources that they have. This is a law about illegal trading 
of illegal logging, and is something that is obviously 
organized-crime oriented and not going after the individual 
musician who has bought a vintage guitar.
    Dr. Harris. Sure. Mr. Rubinstein, I am not a lawyer, I am a 
doctor, but my understanding is, this law could clearly apply 
to an individual who possesses a musical instrument that has 
wood that was questionably obtained illegally in a foreign 
country, is that right?
    Mr. Rubinstein. Your understanding is correct.
    Dr. Harris. So let me get the picture straight because I 
never even heard of the Lacey law until I visited Paul Reed 
Smith Guitars. So you have some music lover who wants to have a 
high-quality guitar, and they go on eBay and they buy--and I 
searched eBay after I visited the plant because I couldn't 
believe how much these sell for, so I searched them and boy, 
they are pricey. So someone could buy it, and my understanding 
of the law is that the seller and the buyer both technically 
violate the law in that transaction. Is that right? Someone who 
owns that?
    Mr. Rubinstein. That is correct.
    Dr. Harris. And the penalty is confiscation, but I didn't 
understand part of your testimony. The way it is written is if 
they confiscate under it, they don't have to return it at any 
point? Or----
    Mr. Rubinstein. Well, if I could, sir. The penalties 
include fines and in appropriate cases, imprisonment. The 
statute has a felony provision and a misdemeanor provision. And 
the standard of knowledge is different under the two of them. 
That standard, which is due care, is highly elastic. It seems 
to have been borrowed, in 1981. If you read the legislative 
history, it seems to have been borrowed from tort law, more so 
than traditional American, Anglo-American criminal law, and it 
creates some problem.
    The seizure provisions, though, are something separate, and 
that goes to the RELIEF Act and its language, and CAFRA, the 
Civil Assets Forfeiture Reform Act from 2000, which Congress, 
in reaction to a variety of civil forfeiture laws over the 
course of 20 years attempted to reform the process to ensure 
that individuals and companies that had property seized have 
the right to recover it provided they meet pretty rigorous 
standard of proof that they are innocent.
    In 2005, as I mentioned, the Ninth Circuit essentially held 
that any property seized pursuant to Lacey is by definition, 
contraband, which is excluded from the innocent owner 
provisions in CAFRA. So in 2008, when Congress went ahead and 
expanded Lacey, it specifically enacted a provision that says 
we really mean it, that CAFRA, which by its terms, applies to 
any civil forfeiture, applies also to----
    Dr. Harris. To the Lacey Act.
    Mr. Rubinstein.--to the Lacey Act. But my understanding is 
that at this point in time, at least the government's position 
is more in accord with the Ninth Circuit ruling, and as a 
result, clarification, obviously, at least, in my view, is 
required.
    Dr. Harris. So just to get it straight, you could get 
someone maybe who has the same attitude as that EPA 
administrator in Texas who says, you know what we want to do, 
we want to teach guitar owners a lesson. They shouldn't have 
exotic illegal woods in their guitar. So we are going to take a 
few of them. We are going to prosecute them. Now, I understand 
it may just be a misdemeanor, may not even be a felony in that 
case, but we are going to prosecute a few of them. That can all 
happen under the current law, is that right?
    Mr. Rubinstein. That is right. If I could just for the 
record though, I want to be clear that the comments in response 
to your questions are my opinion, not necessarily those of the 
Chamber ILR.
    Dr. Harris. Sure, I understand that.
    Mr. Rubinstein. The answer to your question is, absolutely.
    Dr. Harris. Thank you very much. Thank you, Mr. Chairman.
    Mr. Rey. If I might, this is another area where the 
consensus discussions I think are bearing some fruit in 
developing an exemption for pre-2008 wood. I think there is 
broad agreement that that should happen. What is now being 
discussed is how to avoid having that exemption become a 
broader loophole and create unintended consequences of its own. 
Because unfortunately, just about every piece of legislation 
has an unintended consequences, as well as intended ones.
    Dr. Fleming. I would like to have another round. Would that 
be OK with you, Dr. Harris?
    I hear what you are saying, Mr. Rey, and then Mr. Gardner, 
you said that you were, I think with this question, posed to 
you, somewhat hypothetically, that you are comfortable that 
nothing is going to happen, or nothing has happened, and then I 
hear Mr. Rey talk about, yeah, with every law, we get the law 
of unintended consequences. It goes along with that, and we 
just need to fix that.
    Well, these amendments were passed in 2008. That is 4 years 
ago, and I am not aware of anything constructive that has been 
done to resolve it. That is even, in fact, why we are here, 
because nothing has been done administratively, apparently, and 
with regard to your reassurances, Mr. Gardner, I am not 
reassured at all because we just saw, as Dr. Harris points out, 
what is happening in the EPA with intimidation. So if that is 
allowed, then the DOJ, or any other agency can become overly 
enthusiastic, overly committed in a certain direction, and take 
advantage of it, and punish innocent Americans. And if we had 
no other job up here than to at least protect Americans, and to 
protect the constitutional aspects of American life, then I 
don't know why we are up here.
    So I just have to say that I am not reassured, but I do 
have a question.
    Mr. Gardner. Would it be possible for me to respond?
    Dr. Fleming. I am sorry, I only have limited time here. Mr. 
Rutenberg, Ms. Everill, in your professional opinions, have the 
2008 amendments been successful in stopping the illegal 
harvested wood and wood products?
    Mr. Rutenberg. Thank you for asking, Mr. Chairman. 
Probably, in my opinion, I am not the one with the best data on 
that, but I would if I had a minute, I would like to amplify on 
the last point. If I could add on that one, and the first part 
has to do with knowledge and the second part has to do with 
some recent court cases.
    To be quick, I have been involved with the National Home 
Builders for 12 years as head of their building materials task 
force. I am a certified green professional. I serve on a number 
of conservation boards. I just spent 4 days in class for a 
masters certificate in green building. I can tell you that as 
an active builder, I would not know what wood--I could have 
wood on my job that would be subject to the Lacey Act, and not 
know. No intentions that come through standard supply channels, 
Home Depot, Lowe's, 84 Lumber and others. We don't buy them in 
the gas stations at night off of the back of someone's truck. 
We, the builders and remodelers and the customers out there 
would not know when they are in trouble.
    So we are very interested in the legal aspects and there 
are two legal cases recently where EPA has come up. One was a 
revocation of a 404 clean water permit. Another one had to do 
with wetlands where people were not given the opportunity to 
appeal. We were able to get favorable court rulings, but to 
your question, there is enforcement going on on other actions 
that does make me concerned. So it is a point of not knowing 
what I am looking at, even though I am a trained professional 
to that point; and two, we are seeing actions by various 
regulatory agencies that would make me concerned.
    Dr. Fleming. All right, thank you for that, Ms. Everill, 
did you have anything to add, or additional comments?
    Ms. Everill. I think what we would add is that while we 
can't, you know, say specifically this is how much it has 
impacted illegal logging, we can say it has generated 
awareness. It has created awareness within the industries, 
among the retail industry of those----
    Dr. Fleming. Well, I bet it has provided awareness. 
Everybody is shaking in their boots. Everybody is obviously 
aware.
    Ms. Everill. Yes, aware, but I think it is a deeper level 
of awareness of what a due care program is and what it entails 
other than asking for a piece of paper of genus and species and 
country of origin. It is a much deeper program.
    Dr. Fleming. So you really don't know either way.
    Mr. Rey, you mentioned some statistics. I think you said 22 
percent reduction in this and that.
    Mr. Rey. 22 percent.
    Dr. Fleming. Have you provided that documentation for us?
    Mr. Rey. Yeah, it is in my statement for the record, and 
the numbers----
    Dr. Fleming. I know that the numbers are in your statement, 
but do you actually have the proof that that has occurred? Do 
you have that document?
    Mr. Rey. I can submit the Chatham Report for the record of 
the hearing.
    Dr. Fleming. OK, now what report is this?
    Mr. Rey. The Chatham Group is an international 
nongovernmental organization that did the analysis country by 
country, and we will provide that for the record.
    Dr. Fleming. Who pays them for the work that they do?
    Mr. Rey. I think that is in the--I don't know myself, but 
it is in the synopsis of the report.
    Dr. Fleming. OK, so an organization that we have never 
heard of, that is paid by nobody that we know, has submitted 
information that you are quoting to us today. We would like to 
see something a little more solid. Do you perhaps, are there 
some other authorities that may be better known and better 
understood and less biased?
    Mr. Rey. There is some United Nations reports that we can 
submit.
    Dr. Fleming. United Nations?
    Mr. Rey. Right, for the record.
    Dr. Fleming. That is definitely an unbiased body.
    Mr. Rey. Well, some of these are numbers, you know. They 
are what they are.
    Dr. Fleming. Well, I mean my point here is, we are putting 
a lot of people through a lot of stuff here. We are taking away 
livelihoods. We are killing jobs. We are throwing people in 
prison. We heard about the 97 months, and we can't really 
document there is any good results from what we have done.
    Mr. Rey. No, I disagree. I think the documentation of the 
results over the past 4 years does exist, and we have saved 
jobs in the wood products industry domestically, so there have 
been trade-offs. And what we need to do now is to make sure 
that as we go forward----
    Dr. Fleming. Can you name the companies for the jobs were 
saved?
    Ms. Harman. I just had one in my testimony, Mr. Talbot is 
sitting in the room.
    Dr. Fleming. Who is that? Can you tell me again?
    Ms. Harman. Mr. Talbot from Glen Oak Lumber. He had to 
leave.
    Dr. Fleming. The Lacey Act saved their jobs?
    Ms. Harman. Well, the Lacey Act has helped to ensure that 
people are looking for legal sources of raw material, and 
looking for legally sourced products. And that was referred to 
in my testimony, related to the uptick in some of the hardwood 
lumber, or hardwood manufacturing industry, where they have, in 
fact, seen an increased awareness that----
    Dr. Fleming. Increased awareness?
    Ms. Harman. The increased awareness that she mentioned has 
translated into additional orders.
    Dr. Fleming. Increased awareness has caused increased 
orders. That kind of sounds like a little spin that we have 
heard before, jobs saved, to me. In any event, I have gone past 
my time, so I will yield to Dr. Harris.
    Dr. Harris. Thank you very much, Mr. Chairman. Let me just 
follow-up a little bit about that, how cumbersome some of these 
regulations are, and where they could enter in. And I guess, 
Mr. Gardner, you mentioned in your testimony, Bob Taylor of 
Taylor Guitars, I guess, implying he was totally supportive of 
the Lacey Act, but in a--I guess this isn't a 
forestlegality.org, a blog he wrote last September actually 
indicates it is not perfect, and he brings up the example of a 
guitar that is made of, even if it is legitimate today, it is 
forever. The way the law is written, every single time it 
changes hands, as he says, that means 40, and I quote from him, 
``that means 40, 50, or 100 years from now, if a guitar 
reenters the U.S. borders the ``importer,'' whether an 
individual or a business will have to attest to its materials, 
genus, species, country of origin, which of course, is 
impossible to do.''
    Is that true? I mean, the way the law is written, is his 
critique of the law, Mr. Gardner, true, that an instrument if 
it is reimported 50 years from now, whatever individual 
reimports it would be subject to the same Lacey requirement?
    Mr. Gardner. I am not a lawyer, but----
    Dr. Harris. OK, Mr. Rubinstein is that true? You are a 
lawyer.
    Mr. Gardner. But I want to continue with my statement, if I 
may.
    Dr. Harris. Well, I know, but if you can't answer because 
you are not a lawyer, I will turn to the lawyer.
    Mr. Gardner. Well, you asked me and you know I am not a 
lawyer so let me answer how--I would like to answer, please, if 
I may.
    Dr. Harris. Go ahead and try.
    Mr. Gardner. More concerning than anything to me is 
whether, if at any point, the wood is sourced from something 
that is bad for people, bad for the environment, bad for our 
ethics, then yes, I am--I think it is just fine and well that--
I personally would not want to have a guitar in my possession.
    Dr. Harris. OK now, you had to have listen to my question 
carefully, because I said, the first time it was made it was 
made legally. OK, so if you are going to answer the question, 
you have--you can't----
    Mr. Gardner. If it is found later to be what, illegal?
    Dr. Harris. No, no, it is just imported later. It is not 
illegal, I mean, it is imported, and according to Lacey, as 
soon as it is imported, the new importer, whether an individual 
or a company, has to certify in a test the genus, species, 
country of origin under the current law. Now, that is the 
hypothesis. Mr. Rubinstein, is that the current law under 
Lacey?
    Mr. Rubinstein. As I understand the question, yes.
    Dr. Harris. OK, so Mr. Taylor, in fact, brings up a good 
criticism of the law, I think. Because again, 50 years from 
now, you know, a guitar, a person who wants to have a nice 
guitar, eBay is international, in case you didn't notice. You 
can get imports from all around the world. We create a 
potential criminal.
    And Mr. Rubinstein, I want to just ask this question 
because it is something you said. You said that under the 
CAFRA, they have to prove that they are innocent in order to 
get their article back?
    Mr. Rubinstein. Yes, as the Civil Asset Forfeiture Reform 
Act was written it contained a provision that allows an 
individual to assert an affirmative defense to a forfeiture, in 
other words, to raise a defense saying that I am not--I should 
not have my property taken by the government. The government 
already has it, and then there is the legal proceeding.
    Dr. Harris. Right. Well, you have to prove you are 
innocent.
    Mr. Rubinstein. Yes.
    Dr. Harris. It is an interesting concept in America. You 
have to prove you are innocent. Because again, 50 years from 
now, that guitar is going to be imported. The person has really 
no knowledge of what the genus and species is, so the 
government confiscates it.
    Ms. Harman. So what is the point?
    Dr. Harris. Excuse me, you had your 5 minutes, I get mine. 
The government confiscates it, and then the individual somehow 
has to prove they are innocent to get their material back. I 
think I understand it. I am still worried about that--about 
that administrator in one of these agencies taking that Texas 
EPA approach. Thank you very much, Mr. Chairman.
    Dr. Fleming. Well, panel, we thank you for your time. You 
are now dismissed, and we will ask our next panel to step 
forward. Eileen Sobeck and Kevin Shea.
    OK. We are now ready for panel three, includes today Ms. 
Eileen Sobeck, Deputy Assist Director for Fish and Wildlife in 
Parks, the Department of the Interior, and Mr. Kevin Shea, 
Associate Administrator, Animal and Plant Health Inspection 
Service, U.S. Department of Agriculture.
    Briefly, repeating my earlier instructions, and your 
written testimony will appear in full in the hearing record, so 
I ask that you keep your oral statements to 5 minutes as 
outlined in our invitation letter to you and under Committee 
Rule 4(a). Our microphones are not automatic. Be sure you push 
the talk button. Be sure that it lights up. We have had 
problems with that today, and be sure that your mouth is close 
enough to the microphone.
    You will have 5 minutes to give your testimony, and operate 
under 4 minutes under green, 1 minute under yellow. When it 
turns red, we ask you to conclude as quickly as possible.
    Ms. Sobeck, you are recognized now for 5 minutes to offer 
testimony of the Department of the Interior on H.R. 3210 and 
H.R. 4171.

 STATEMENT OF EILEEN SOBECK (H.R. 3210 AND H.R. 4171), DEPUTY 
   ASSISTANT DIRECTOR FOR FISH AND WILDLIFE AND PARKS, U.S. 
                   DEPARTMENT OF THE INTERIOR

    Ms. Sobeck. Thank you very much, and good afternoon, 
Chairman Fleming, and members of the Subcommittee. I am Eileen 
Sobeck, Deputy Assistant Secretary for Fish and Wildlife and 
Parks with the Department of the Interior, and I appreciate the 
opportunity to testify today on the two bills that would 
significantly weaken the Lacey Act, H.R. 3210, and H.R. 4171.
    The Lacey Act prohibits trafficking and illegally taken 
fish, wildlife and plants. Its premise is simple but effective. 
People who take wildlife in violation of a State, tribal or 
foreign law and then engage in interstate commerce with the 
wildlife are violating U.S. Federal law. Congress has amended 
the Lacey Act many times since it was first enacted in 1900. 
The foreign law component was added in 1935. Penalties and 
enforcement tools were strengthened in 1981. And then as we 
know from today in 2008, stronger protections were added for 
plants, notably timber. The 2008 plant amendments were 
supported by a broad coalition of trade associations and 
environmental organizations, and unions, and this unusual, I 
must say, and robust commitment and support continues today as 
I think we have heard.
    Illegal wildlife trade is a big business. Our law 
enforcement agents' efforts to stop wildlife smuggling can put 
them against organized criminal networks conducting high-profit 
black market trade valued in the billions. The 225 special 
agents of the U.S. Fish and Wildlife Service work on over 
13,000 investigations each year involving complex crimes that 
target highly endangered species such as elephants, rhinos, 
tigers and sea turtles, as well as domestic species managed by 
States, such as deer and striped bass. The number of agents has 
not changed since the early 1980s, but the illegal trade they 
combat has grown in sophistication, and the global demand for 
wildlife products has expanded.
    In the face of this battle against global wildlife 
trafficking, the Lacey Act is absolutely critical. It provides 
a deterrent to wildlife trafficking through criminal penalties. 
It gives law enforcement officers the tools to conduct 
investigations, make arrests, and protect both themselves and 
members of the public in dangerous situations. The 
Administration has serious concerns with H.R. 4171 and we 
oppose this bill in its entirety. H.R. 4171 is an extreme bill 
that would eviscerate a century of congressional action that is 
recognized around the world as a model for effective 
conservation enforcement.
    This bill would eliminate essential authorities in the 
Lacey Act severely undercutting its effectiveness to enhance 
conservation internationally and here in the United States. For 
example, the bill would eliminate all criminal penalties from 
the Lacey Act. The elimination of potential for jail time, no 
matter the scope of the violation, or the intent, would rip the 
enforcement guts out of this law. The deterrent effect of the 
weak civil penalties that would remain, would be minimal, at 
best. Wildlife and plant smugglers and traffickers around the 
world would be celebrating if this bill were enacted.
    The bill would also severely impair the capability, and 
this is a very important point of our law enforcement officers, 
under H.R. 4171, Federal wildlife law enforcement officers 
would be unable to obtain search warrants to gather evidence; 
they could not inspect vehicles and containers; and they would 
not be able to make an arrest under the Lacey Act even with the 
clearest evidence in hand. Of greatest concern, H.R. 4171 
proposes to disarm Federal wildlife officers. This is dangerous 
on many levels. These brave men and women regularly encountered 
armed and dangerous criminals while enforcing Federal wildlife 
laws, as Congressman Markey indicated. Disarming them creates 
an unacceptable risk for the officers, their families, and the 
public. This would, simply put, be unconscionable.
    The negative impact of H.R. 4171 on the Lacey Act is 
severe. If passed, poachers, smugglers and traffickers will 
gain the upper hand and our partners will lose critical Federal 
support. We have the strong support and concurrence of our 
State law enforcement counterparts on this score.
    The Administration also has significant concerns with a 
number of provisions of H.R. 3210. For example, the bill would 
weaken deterrence by capping civil penalties for first offenses 
involving plants at only $250 even for offenses involving 
commercial scale quantities of illegally harvested timber. This 
provision would put U.S. businesses that follow the rules at a 
competitive disadvantage and really flies in the face of 
logical law enforcement.
    While we understand the concerns raised by H.R. 3210, we 
believe they are adequately addressed in how we implement the 
law. Our enforcement focus is on commercial trafficking, not on 
individual owners. There have just been six investigations 
initiated by the Fish and Wildlife Service relating to the 2008 
plant amendment. This is in stark contrast with nearly 4,000 
wildlife investigations conducted under the Lacey Act during 
that same period.
    We have not sought or obtained forfeiture of any musical 
instrument from an individual due to violation of the plant 
amendments. We believe it is premature to revisit the 2008 
amendments and respectfully suggest that Congress wait to 
consider changes. Thank you for allowing me to testify today.
    Dr. Fleming. Thank you, Ms. Sobeck.
    [The prepared statement of Ms. Sobeck follows:]

  Statement of Eileen Sobeck, Deputy Assistant Secretary for Fish and 
          Wildlife and Parks, U.S. Department of the Interior

    Good afternoon Chairman Fleming and Members of the Subcommittee. I 
am Eileen Sobeck, Deputy Assistant Secretary for Fish and Wildlife and 
Parks, in the Department of the Interior. I appreciate the opportunity 
to testify before you today on H.R. 3210 and H.R. 4171, bills that 
would significantly amend the Lacey Act.
    The Department of the Interior has serious concerns with each of 
these bills. As detailed in my testimony, H.R. 3210 would weaken the 
plant protection provisions of the Lacey Act. H.R. 4171 would remove 
essential authorities in the Lacey Act, one of the most important and 
effective conservation laws in the world and in doing so, undercut 
legal trade in wildlife and plants. In addition, H.R. 4171 would disarm 
wildlife law enforcement officers in the United States, putting these 
brave men and women, who already put themselves in harm's way on behalf 
of the American people, at serious risk.
    The U.S. Fish and Wildlife Service (Service) is one of the lead 
federal agencies for enforcing the Lacey Act, a long-standing law that 
prohibits trafficking in illegally taken fish, wildlife, and plants. 
The Service also enforces many other U.S. laws that protect wildlife, 
including the Endangered Species Act, the Marine Mammal Protection Act, 
and the Migratory Bird Treaty Act. The Lacey Act complements and 
strengthens our ability to enforce these other statutes.
    The Service's 225 special agents work on over 13,000 investigations 
each year involving complex, high-impact wildlife crimes. The focus of 
these wildlife crimes include highly endangered species such as 
elephants, rhinos, tigers, and sea turtles; rain forests in the 
tropics; wildlife habitat in the United States; and domestic species 
like deer and bears that are poached in violation of state laws. Our 
agents' efforts to stop wildlife smuggling pit them against organized 
networks and criminals conducting high-profit, black market trade 
valued in the billions. Our agents are responsible for covering the 
nearly four million square miles of land that make up this country. 
They are an extraordinary group focused on combating illegal taking and 
trafficking of wildlife and wildlife products in the United States. In 
fact, this group--in terms of numbers of officers--has remained 
essentially the same since the early 1980s. In contrast, illegal trade 
has grown in sophistication, the global economy for wildlife products 
has expanded, and new law enforcement mandates have been enacted.
    We have 139 wildlife inspectors stationed at 38 of the more than 
400 Customs port of entry. Last year they processed approximately 
180,000 declared shipments of wildlife and wildlife products worth more 
than $2.8 billion. Wildlife inspectors are our front line defenders 
utilizing the Lacey Act to help stop the import of injurious species 
that could devastate our native ecosystems and industries if one of the 
species were illegally imported or smuggled into the country.
    The Service also employs 403 Federal Wildlife Officers who serve as 
the uniformed police force and conservation officers for the 557 
National Wildlife Refuges in the United States. These officers are 
responsible for maintaining law and order, and protect the safety of 
millions of visitors on approximately 150 million acres of land and 
water throughout the United States and its territories. These officers 
investigate and respond to many thousands of crimes committed on 
refuges each year, including violent crimes and crimes involving 
weapons and illegal drugs.
    The Service's agents and officers depend on the Lacey Act to do 
their work. The Lacey Act is the single most effective wildlife law 
available in the United States. Its prohibitions protect animal and 
plant resources from rapacious exploitation here and around the world. 
Its penalties make prison sentences and significant fines a real 
possibility for hard-core profiteers; reduce financial incentives for 
wildlife and plant trafficking; and provide real deterrents for 
wildlife crime. It also supports those businesses that commerce in 
legitimate wildlife and plant trade here and abroad. Its authorities 
show that our Nation's commitment to wildlife conservation goes beyond 
words to encompass action, because it equips law enforcement officers 
with the tools they need to conduct investigations and bring criminals 
to justice.
    The Administration strongly opposes H.R. 4171 because it would 
undermine the Lacey Act and facilitate the illegal trafficking of 
wildlife and plants. H.R. 4171 would tip the already unbalanced scales 
firmly against law enforcement officers and agents striving to enforce 
wildlife conservation laws on behalf of the American public.
    With respect to H.R. 3210, the Administration appreciates the 
concerns raised in the bill and believes that many of these concepts 
are and can be addressed in the way that we implement the current law. 
However, we are willing to work with the sponsors to discuss how best 
to sharpen the approach to the concerns raised by H.R. 3210.
Historical Background
    The Lacey Act was the Nation's first federal wildlife protection 
law. Its passage in 1900 was prompted by growing concern about 
interstate profiteering in illegally taken game species and the impact 
of that trafficking on states and their wildlife resources.
    The Lacey Act was drafted and shepherded through Congress by 
Representative John Lacey, an Iowa Republican and early 
conservationist. The law made it illegal to transport from one state or 
territory to another wild animals or birds killed in violation of state 
or territorial law. According to the House Committee Report from the 
56th Congress, its ``most important purpose'' was ``to supplement the 
state laws for the protection of game and birds.'' It also banned the 
importation of injurious wildlife that threatened crop production and 
horticulture in this country. In its original version, the Lacey Act 
focused on helping states protect their resident wildlife. Defendants 
charged under its interstate commerce provisions would first have 
violated a state wildlife law and then taken that unlawfully acquired 
wildlife across state lines and beyond the reach of its authorities.
    Congress expanded the Lacey Act through amendments several times 
during the law's first century. One of the most significant of these 
amendments occurred in 1935, when Congress extended the Lacey Act's 
prohibitions on interstate commerce to include wildlife and birds taken 
in violation of federal or foreign law. An important example is the 
1918 Migratory Bird Treaty Act.
    Amendments enacted in 1981 expanded the scope of the statute to: 
include certain unlawfully harvested fish; increase penalties for 
trafficking; strengthen tools for enforcement; apply prohibitions on 
interstate and international trafficking to any type of wild animal; 
and extend protection to certain wild plants. The 1981 amendments also 
added tribal laws and U.S. treaties to the list of underlying laws 
upheld; incorporated strict liability forfeiture provisions consistent 
with other resource laws; and established criminal felony liability for 
those buying or selling protected specimens of fish or wildlife that 
they knew had been taken and transported in violation of an underlying 
law.
2008 Plant Amendments
    The most recent amendments to the Lacey Act were passed by Congress 
and signed into law on June 18, 2008, as part of the Food, 
Conservation, and Energy Act of 2008 (Pub. L. 110-246). They expanded 
the definition of plants covered by the Act, and similarly expanded and 
clarified the predicate violations that could trigger the Lacey Act.
    Under the 2008 amendments, it is unlawful to import, export, sell, 
receive, acquire or purchase in interstate or foreign commerce any 
plant that was taken in violation of a federal, state, tribal or 
foreign conservation law. The statute specifies that the underlying 
laws that trigger a plant trafficking violation include laws and 
regulations that:
          protect the plant;
          regulate the (i) theft of plants, (ii) taking of 
        plants from a park, forest reserve, or other officially 
        protected area, (iii) taking of plants from an officially 
        designated area, or (iv) the taking of plants without, or 
        contrary to, required authorization;
          require royalties, taxes or stumpage fees for the 
        taking, possession, transportation or sale of any plant; and
          govern the export or transshipment of plants.
    The amendments were supported by the Bush Administration as part of 
its Presidential Initiative against Illegal Logging. The initiative 
responded to widespread concerns about the economic impacts of illegal 
logging. Both Republicans and Democrats supported the amendments as a 
way to protect jobs from unfair and illegal logging practices.
    The Lacey Act plant amendments were supported by more than 50 trade 
associations, non-profits, and unions, representing the entire range of 
stakeholders, as well as the Bush Administration, Executive Branch 
agencies, and both parties in Congress. This broad support was driven 
by the fact that: first, illegal logging practices have a negative 
impact on U.S. businesses that operate by the rules; and second, 
illegal logging has a negative impact on biodiversity, indigenous 
peoples, and the global climate.
    In particular, the law received strong support from the U.S. forest 
products industry. The 2008 amendments help ensure that all businesses, 
including foreign companies that send their goods into this country, 
are operating on a level playing field.
    The amendments equipped the United States with tools for addressing 
illegal logging and timber trafficking. They provided a new definition 
of the term ``plant'' making it clear that (with some limited 
exceptions) the prohibitions apply to plant products as well as living 
plants themselves. Specifically, ``plant'' was defined as ``any wild 
member of a plant kingdom, including roots, seeds, parts, or products 
thereof, and including trees from either natural or planted forest 
stands.'' The inclusion of ``products'' parallels wildlife provisions 
in the Lacey Act, which cover not only live fish and wildlife, but also 
products made from them.
    The amendments also added a declaration requirement for plant 
products. This mandate is similar to the requirement for the 
declaration of wildlife imports and exports established by the 
Endangered Species Act, which also applies to all wildlife and wildlife 
products, whether protected under a specific conservation law or not, 
but covers a larger range of commercial and non-commercial shipments.
    The U.S. Department of Agriculture's Animal and Plant Health 
Inspection Service (APHIS), operating within available funding, has 
implemented and enforced the amendments with respect to the importation 
process itself. As in the past, the Service remains responsible for 
conducting criminal investigations of Lacey Act violations, including 
those authorized by the plant amendments. APHIS was assigned 
significant new responsibilities with respect to monitoring trade in 
plants and plant products under the Lacey Act--responsibilities that 
include developing and implementing a declaration system and collecting 
and maintaining plant import data.
Importance of the Lacey Act
    Today the Lacey Act makes it unlawful to traffic in fish, wildlife, 
or plants taken, possessed, transported, or sold in violation of 
federal, state, foreign, or Native American tribal conservation law, 
treaty, or regulation. It allows the United States to help states, 
Tribes, and countries worldwide protect their natural resources by 
discouraging a U.S. market and U.S. demand for illegally obtained 
plants and wildlife. The law is a critical cornerstone for resource 
protection and conservation law enforcement.
    Under the Lacey Act, Service law enforcement agents expose illegal 
guiding operations (i.e., guided hunting trips) profiteering in state, 
tribal, and federally protected species and pursue cases involving the 
illegal large-scale commercial exploitation of wildlife and plant 
resources in violation of state, tribal, or federal law. The Lacey Act 
provides a unique mechanism for states and Tribes to address crimes 
within their borders by out-of-state or non-tribal guides and hunters 
as well as the interstate sale or international export of unlawfully 
acquired U.S. wildlife or plants. Such sales fuel the market for 
certain species, putting domestic wildlife and plant populations 
increasingly at risk. Illegal commercialization of wildlife is a real 
and present threat to conservation.
    On the international front, the Lacey Act provides an essential 
tool for combating large-scale smuggling and the subsequent interstate 
commerce in global species protected and regulated under federal laws, 
international treaties such as CITES, and the conservation laws of 
other countries. Its provisions give the Justice Department access to 
powerful enforcement tools which help to bring charges against 
international organized crime rings and criminals who knowingly and 
deliberately traffic in the world's most imperiled species and in its 
most important natural resources, such as fisheries and timber. 
Trafficking in illegally harvested wood, for example, is estimated to 
generate proceeds of approximately $10 billion to $15 billion annually 
worldwide, according to a 2012 report by the World Bank \1\.
---------------------------------------------------------------------------
    \1\ Marilyn Pereira Goncales, et al. Justice for Forests: Improving 
Criminal Justice Efforts to Combat Illegal Logging. Washington, D.C.: 
World Bank, 2012.
---------------------------------------------------------------------------
    The existence and enforcement of the Lacey Act's foreign law 
provisions have made the United States a leader and role model for 
countries around the world--particularly those that, like the United 
States, have long been major markets for wildlife and plant resources 
illegally taken in developing countries that struggle to feed their 
people, let alone protect their wildlife, plants, and forests. Through 
these provisions, our Nation holds itself accountable for stopping 
illegal trade in natural resources involving interests in our country, 
and recognizes and supports the efforts of other countries to level the 
playing field for legitimate businesses who manage their natural 
resources responsibly.
H.R. 4171
    H.R. 4171, the Freedom from Over-Criminalization and Unjust 
Seizures Act, would eliminate essential authorities in the Lacey Act, 
radically changing its nature and severely undercutting its 
effectiveness to conservation internationally and here in the United 
States. The statutory structure of Lacey Act evolved over the past 
century. It reflects the deliberative work of many Congresses, federal 
enforcement of the Lacey Act by the Service and the National Oceanic 
and Atmospheric Administration and the experiences of federal, State, 
Tribal, and foreign governments in implementing conservation laws and 
programs that need to expand political borders. H.R. 4171 weakens Lacey 
Act prohibitions, eliminates Lacey Act criminal penalties, and 
significantly hampers the law enforcement capability of officers 
authorized to enforce the Lacey Act.
    For these reasons, the Administration strongly opposes H.R. 4171 in 
its entirety. Specific comments on the provisions of H.R. 4171 follow.
H.R. 4171 Weakens Lacey Act Prohibitions
          Section 2(a) of H.R. 4171 would eliminate all 
        violations predicated on foreign law. The Service opposes this 
        provision for the reasons described below.
    The Service seeks to conserve fish, wildlife and plants for future 
generations. We have long recognized that conservation is a global 
issue. We cannot sacrifice coral reefs around the world and expect to 
have healthy oceans. We cannot sacrifice migratory birds in the rest of 
the Americas and expect to see them on their annual migrations through 
the United States. Americans enjoy seeing gorillas and elephants while 
on vacation or when they watch their favorite nature program. Many 
Americans wish to ensure that their grandchildren are afforded the same 
opportunities.
    The Service supports international conservation projects around the 
globe, such as the Multi-National Species Conservation Funds that help 
countries conserve rhinos, tigers, elephants, and sea turtles. The 
Lacey Act foreign law provisions help to ensure that individuals within 
the jurisdiction of the United States do not undermine these global 
conservation initiatives. The statute's foreign law provisions 
recognize the reality that many countries with conservation laws lack 
the resources or capacity to enforce them within their borders, leaving 
their wildlife and plants especially vulnerable to outside 
exploitation. They also recognize that the United States provides a 
significant market for the trade in illegally taken wildlife, fish, and 
plants. Since the 1930s, the United States has had a law on the books 
that makes it illegal to knowingly import wildlife taken in violation 
of a foreign law. This is both a pragmatic and an ethically sound 
approach.
    For the first time in more than eight decades, H.R. 4171 would do 
away with all trafficking prohibitions predicated on foreign law, 
destroying a global alliance for wildlife protection that has benefited 
species worldwide. H.R. 4171 sends a message to other countries, 
including long-standing strategic allies and more recent conservation 
partners, that the United States is no longer a team player when it 
comes to enforcing conservation laws throughout the world. Indeed, it 
proclaims an indifference to the toll that international trafficking 
has taken on species that range from African elephants and Madagascan 
ploughshare tortoises to South American parrots and Pacific corals and 
from neo-tropical mahogany to Southeast Asian orchids.
H.R. 4171 Eliminates Lacey Act Criminal Penalties, Permit Sanctions, 
        and Vehicle Forfeiture
          Section 2(b) of H.R. 4171 eliminates all criminal 
        penalties--both misdemeanors and felonies. It would eliminate 
        the potential for jail time, no matter the scope of the 
        violation.
          Section 2(b) of H.R. 4171 eliminates permit sanctions 
        for violations of Lacey Act.
          Section 2(c) of H.R. 4171 eliminates the government's 
        authority for forfeiture of vehicles and other 
        instrumentalities used in the commission of an offense.
    In addition to the harm that H.R. 4171 would do to U.S. 
contributions to global conservation, it would also make sweeping 
changes in the legal consequences for trafficking in state, tribal and 
federally protected species in the United States and in the Service's 
authority for enforcing its remaining prohibitions.
    H.R. 4171 would eliminate criminal penalties for any Lacey Act 
violation and removes provisions that authorize the Service to suspend 
import/export licenses and deny permits to businesses that violate the 
Lacey Act's anti-trafficking provisions. It also prevents the 
forfeiture of vehicles and other instruments used in the trafficking. 
It thus would remove vital deterrents to crime and the prospect of 
serious punishment and only allow for imposition of more limited civil 
penalties. In organized schemes involving high-value resources, civil 
fines are not a sufficient deterrent and become merely an occasional 
and potential ``cost of doing business'' for those who stand to profit 
from conducting illegal activities. Wildlife cases can--and have--
involved products valued in the tens of millions of dollars.
    Under current law, Service special agents face a substantial burden 
of proof to secure criminal Lacey Act charges. Investigators must prove 
that the potential defendant acted with full knowledge of the legal 
status of the wildlife, plant, or product with respect to its removal 
from the wild and those transactions that occurred before interstate 
transport or importation. Criminal penalties only apply to those who 
intentionally or recklessly violate the law. Individuals and companies 
who unintentionally do so are currently subject only to civil liability 
and a maximum penalty of $10,000.
    Felony penalties do not apply (and would not be sought) against 
violators unless both investigators and prosecutors believe that it can 
be proved in court, beyond a reasonable doubt, that the violators knew 
exactly what they were doing. The Lacey Act provides misdemeanor 
penalties for persons who, in the exercise of due care, should have 
known that the wildlife or plant in which they were dealing was 
illegal.
    If H.R. 4171's proposed changes had been in place over the past 
decade, none of the convicted defendants in Lacey Act cases would have 
served any prison time or would have had their vehicles subject to 
forfeiture. No restitution would have been paid to states, tribes, or 
other groups and no conservation efforts would have been funded with 
these monies. Repeat or egregious violators would retain and remain 
eligible for Service permits or licenses, including licenses to conduct 
commercial trade in wildlife. Even those trafficking in wildlife and 
plants that are on the brink of extinction would face only limited 
liability under federal wildlife law. At most, they could be charged 
with misdemeanor violations.
    The reality is conservation law enforcement is already challenged 
with competing for the attention of federal prosecutors and courts. 
Without felony provisions, far fewer resource trafficking cases will be 
brought. H.R. 4171 sends a message that conservation law enforcement is 
not a priority. It should also be noted that the Lacey Act's felony 
provisions often provide incentives for violators to plea to offenses 
with lesser penalties, thereby reducing the burden on courts and 
prosecutors.
H.R. 4171 Eliminates Law Enforcement Capabilities
          Section 2(d) of H.R. 4171 eliminates the authorized 
        officers' authority to conduct searches for evidence.
          Section 2(d) of H.R. 4171 eliminates a Magistrate's 
        authority to even issue a search warrant when probable cause of 
        a violation of the Lacey Act exists. In doing so, it strips the 
        Government of its fundamental ability to obtain vital evidence 
        to prove a violation of the law.
          Section 2(d) of H.R. 4171 eliminates the authorized 
        officers' broad authority under the Lacey Act to detain and 
        inspect any vehicle, vessel, or other conveyance and any 
        package, crate or container and its contents being imported or 
        exported.
          Section 2(d) of H.R. 4171 removes law enforcement 
        agents' ability to make an arrest under the Lacey Act even with 
        the clearest, most demonstrable evidence in hand.
          Section 2(d) of H.R. 4171 bars judges from issuing an 
        arrest warrant for violations of the Lacey Act.
          Section 2(d) of H.R. 4171 eliminates the explicit 
        statutory authority of authorized officers to carry firearms 
        under the Lacey Act.
    The Lacey Act is not only a cornerstone for the Service's wildlife 
law enforcement, it is a critically important law for our federal, 
state and tribal partners. States and tribes regularly ask the Service 
to open joint investigations into interstate wildlife trafficking 
predicated on violations of State and Tribal law. But such 
investigations would make little progress were H.R. 4171 to become law, 
for special agents who cannot get a federal search warrant, conduct a 
search, or carry a firearm to protect themselves essentially have no 
tools for documenting criminal activity.
    Removal of the explicit statutory authority for Service law 
enforcement officers to carry firearms under the Lacey Act is of 
particular concern. Service law enforcement officers regularly 
encounter armed and dangerous criminals while enforcing federal 
wildlife conservation laws. Placing law enforcement officers in the 
position of being unable to defend themselves or others creates an 
unacceptable risk.
    H.R. 4171 would not only prevent Service law enforcement officers 
from carrying firearms when enforcing the Lacey Act, it could also 
remove in its entirety the authority for Service special agents and law 
enforcement officers to carry a firearm during any enforcement 
activity. Many of the wildlife protection laws passed after the Lacey 
Act (including the Migratory Bird Treaty Act, Eagle Protection Act, 
National Wildlife Refuge System Administration Act, and Endangered 
Species Act) do not address this issue, likely because of the pre-
existing authority under the Lacey Act.
    H.R. 4171 would weaken the Nation's access to the law enforcement 
expertise and manpower that Service special agents and refuge officers 
provide to U.S. Government efforts to protect Americans from terrorism 
and help communities across the Nation respond to natural disasters and 
other emergencies. It would also put these brave men and women in 
danger.
    These armed officers answered the call of a Nation in crisis in the 
aftermath of 9/11, providing enhanced security at federal facilities 
and Boston's Logan International Airport and serving as full-time 
federal air marshals for extended periods. These officers provided 
security at the Olympic Games in Salt Lake City and Atlanta and for 
political events in Washington, D.C. They waded through flood waters in 
the wake of Hurricane Katrina to rescue stranded residents and helped 
secure the devastated city of New Orleans as it struggled to restore 
order. They were on the scene just last year serving the people of the 
Dakotas when rivers in those States flooded homes and farms, 
threatening lives and livelihoods.
    On National Wildlife Refuges, our law enforcement officers are 
charged by law and regulations, ``...to protect fish and wildlife and 
their habitat and prevent their disturbance, to protect Service lands, 
property, facilities, or interests therein and to insure the safety of 
the using public to the fullest degree possible.'' National Wildlife 
Refuges have approximately 44 million visitations each year, including 
2.5 million hunting and 7.2 million fishing visitations.
    In 2011, the law enforcement officers of the National Wildlife 
Refuge System handled 43,733 reported service calls. Of these calls, 
35,200 involved violations of law, including 6 homicides, 5 rapes, 67 
burglaries, the seizure of approximately 246,000 pounds of marijuana 
and 62 kilos of cocaine. Refuge System law enforcement officers 
apprehended 2,372 undocumented aliens who were either being smuggled as 
human trafficking or were participating as traffickers themselves. 
Refuge System law enforcement officers investigated or encountered 
approximately 26,459 wildlife related crimes on Service lands in 2011.
    Refuge System law enforcement officers work all corners of the 
United States from the northern part of Alaska to the U.S./Mexico 
border, in Puerto Rico, Guam and Midway Atoll, and in every state in 
the continental United States. They routinely work alone, in very 
remote areas, and in situations where support or aid is often hours 
away.
    Refuge System law enforcement officers have statutory authority to 
arrest under several laws but the Lacey Act is the only law that grants 
the statutory authority for officers to carry firearms in conducting 
their duties. It is essential to protect the safety of the public and 
the law enforcement officers and that this explicit statutory authority 
is maintained.
H.R. 3210
    H.R. 3210, the Retailers and Entertainers Lacey Implementation and 
Enforcement Fairness Act, calls for a number of specific changes to the 
2008 plant amendments to the Lacey Act. The Administration appreciates 
the concerns raised in H.R. 3210. We believe that many of these 
concepts are addressed in the way we implement the current law, 
including an enforcement focus on commercial trafficking, not on 
individual owners or retailers. In addition, APHIS, working with 
agencies responsible for enforcing the Lacey Act, has taken and is 
taking a number of steps to address some of the issues that have arisen 
in implementation of the Act without undercutting the important 
purposes of the Amendments. We believe that those processes have and 
will adequately address the concerns and implementation issues.
    However, we are willing to work with the sponsors to discuss how 
best to sharpen the approach to the concerns raised by H.R. 3210.
    The Administration does, however, have significant concerns with 
H.R 3210, as written. For example, Section 3(c) would introduce the 
concept of the ``innocent owner'' into the Lacey Act for the first 
time, and would extend this exemption not just to individuals or 
retailers, but also to forfeitures against companies engaged in the 
importation of the illegal material. Such companies would have little 
incentive to exercise due care (the culpability standard for a 
misdemeanor Lacey Act violation) in buying imported wood or other plant 
products since the government could only seize and forfeit such 
contraband when investigators could prove that the Lacey Act violation 
was knowingly committed. Limiting prosecutions to only those who 
knowingly violate the law would provide an incentive for importers to 
be ignorant or claim ignorance of the contents of his or her shipments 
and undermine the Administration's efforts to combat the trafficking of 
protected wildlife and the importation of injurious non-native species.
    Current law provides the Service's Office of Law Enforcement and 
the Department of Justice the flexibility to take into consideration 
mitigating and aggravating circumstances when deciding whether to file 
formal charges, issue a violation notice, or simply seize a shipment. 
There is a significant amount of discretion applied on a case-by-case 
basis. The U.S. Government has a long and positive track record of 
pursuing fair prosecutions under the Lacey Act.
    In addition, Section 4 of H.R. 3210 would also cap civil penalties 
(and apparently criminal misdemeanor penalties) for first offenses 
involving plants and plant products at only $250, even offenses 
involving commercial scale quantities of illegally harvested raw wood 
and timber. This change would signal to companies trading in illegal 
wood or other plant resources that they could risk being caught on at 
least one more contraband shipment as ``a cost of doing business'' 
unless investigators can prove that the Lacey Act violation was 
deliberately committed. This provision of the bill would weaken 
deterrents for illegal trafficking. It would also significantly 
undercut U.S. businesses who follow the rules and exercise due care 
putting them at a competitive disadvantage.
Conclusion
    In considering H.R. 4171, we urge the committee to weigh carefully 
the far-reaching negative impact and message passage of these laws will 
have on efforts to stop illegal trafficking in wildlife and plants; on 
U.S. conservation partnerships with states, tribes, and other 
countries; on our collective stewardship fish, of wildlife and plant 
resources; on businesses here and abroad engaged in the legitimate 
harvest of, and trade in natural resources; and on the conservation of 
species here and around the world. With regard to H.R. 3210, we are 
concerned that the legislation may have unintended, deleterious 
consequences on the important protections provided to plants under the 
Lacey Act, but we are willing to work with the sponsors to address the 
issues raised by the bill.
    Mr. Chairman, thank you for the opportunity to testify on these 
bills. I would be pleased to answer any questions that you and members 
of the subcommittee may have.
                                 ______
                                 
    Dr. Fleming. Next, Mr. Shea.

 STATEMENT OF KEVIN SHEA (H.R. 3210 AND H.R. 4171), ASSOCIATE 
  ADMINISTRATOR, ANIMAL AND PLANT HEALTH INSPECTION SERVICE, 
            UNITED STATES DEPARTMENT OF AGRICULTURE

    Mr. Shea. Thank you, Mr. Chairman. I appreciate the 
opportunity to be here today. I am Kevin Shea, and I am the 
Associate Administrator of USDA's Animal and Plant Health 
Inspection Service. Our core mission is protecting animal and 
plant health for agriculture. We also administer the Animal 
Welfare Act and conduct wildlife damage activities. The 2008 
amendments to the Lacey Act gave us a new role. We now 
administer the Act's plant import declaration requirement, 
while our partners in the Fish and Wildlife Service, and the 
Department of Justice are responsible for enforcement of the 
substantive provisions.
    Prior to the 2008 amendments, the Lacey Act's plant 
protection provisions were very limited in scope. The 
amendments expanded the Act's coverage to include all plants 
and plant products, and encompass foreign, conservation, or 
export laws, as well as Federal and State laws. In addition to 
the prohibition on illegally sourced plants, the amendments 
also created a new declaration requirement for importers. With 
very limited exceptions, anyone importing a plant, or plant 
product must declare the scientific name of the plant product, 
the value of the importation, the quantity of plant material 
being imported, and the country of harvest.
    APHIS has been responsible for developing the import 
declaration form, issuing guidance to help importers comply 
with the Act, and then actually collecting the completed forms, 
either on paper or electronically. In implementing this new 
requirement, we have tried to do so in a commonsense manner, 
and have made it a priority to gather input from stakeholders 
all along. We believe that most importers are trying to do the 
right thing, so we want to have a process that is as simple as 
possible for them, but that still allows to us carry out our 
particular role in protecting the environment and natural 
resources in accordance with the Act's goals.
    I would like to quickly mention five things that we have 
done to make the declaration requirement work better. First, we 
have phased in the declaration requirement, rather than having 
it apply to all possible products at once. We included less 
complex products first, to make the compliance easier as 
importers began to learn their obligations under the Act.
    Second, we limited the requirement to formal Customs 
entries; that is, commercial shipments and have not applied it 
to personal shipments. Third, we have created special use 
designations to make filling out the declaration form more 
practical. For example, we have a designation of SPF, that 
importers can use to indicate that their shipment is comprised 
of spruce, pine, and fir lumber, a common trade name that 
represents a small number of possible species.
    Fourth, we have proposed a rule that would clarify the 
statutory exemption for common food crops and common cultivars. 
We have estimated that under full implementation this would 
result in about a 1/3 reduction in the number of declarations 
that would need to be filed.
    And finally, we have worked directly with importers when we 
have identified errors in submitted declaration forms to help 
them better understand the requirement and what they need to do 
to comply with the 2008 amendments.
    Mr. Shea. We are also working to improve our ability to 
analyze data so that we can better assist our Federal partners 
in the Fish and Wildlife Service. We have upgraded our software 
and analytical capabilities to allow us to more easily identify 
errors or patterns of errors with the submitted declarations. 
As we move forward, we will continue to listen closely to all 
of our stakeholders, both in the regulated community and our 
Federal partners. Their valuable input has helped us shape how 
we have implemented the amendments, and we need everyone's 
input to make this law work as effectively as we can. Thank 
you, Mr. Chairman, again, for the opportunity. I would be happy 
to answer questions.
    Dr. Fleming. Thank you, Mr. Shea.
    [The prepared statement of Mr. Shea follows:]

  Statement of Kevin Shea, Associate Administrator, Animal and Plant 
       Health Inspection Service, U.S. Department of Agriculture

    Dear Mr. Chairman and Members of the Subcommittee:
    Thank you for the opportunity to testify at today's hearing on 
legislation to amend the Lacey Act. I am Kevin Shea, and I am the 
Associate Administrator of the USDA's Animal and Plant Health 
Inspection Service (APHIS).
    APHIS has a broad mission that includes protecting U.S. 
agricultural animal and plant health, administering the Animal Welfare 
Act, and carrying out wildlife damage management activities. These 
efforts support the overall mission of USDA: to protect and promote 
food, agriculture, and natural resources.
APHIS' ROLE IN THE LACEY ACT
    The 2008 amendments to the Lacey Act, among other things, require 
importers of plants and plant products to submit an import declaration 
detailing key information about the plant contents of the items they 
are importing. APHIS' responsibilities under the Lacey Act are to 
develop the declaration form, promulgate regulations and guidance 
related to the declaration, and to collect and review the completed 
declarations. The U.S. Fish and Wildlife Service and, in some 
instances, other enforcement agencies such as the U.S. Forest Service 
and the Department of Homeland Security, Immigration and Customs 
Enforcement, are responsible for investigating alleged violations and 
initiating enforcement actions. The Department of Justice is 
responsible for judicial enforcement of the Lacey Act.
    The Lacey Act makes it unlawful to traffic in fish, wildlife, or 
plants taken, possessed, transported, or sold in violation of federal, 
state, foreign, or Native American tribal conservation law, treaty, or 
regulation. It allows the United States to help states, tribes, and 
countries worldwide protect their natural resources by discouraging a 
U.S. market and U.S. demand for illegally obtained sources plants and 
wildlife. The law is a critical cornerstone for resource protection and 
conservation law enforcement.
    APHIS has worked to implement the declaration requirement in a 
common-sense manner that is consistent with the statutory requirements, 
protective of the environment and natural resources, and manageable for 
the regulated community.
    Accordingly, the Agency has:
          Worked with enforcement agencies to phase in 
        enforcement of the declaration requirement in a measured way, 
        gradually adding categories of products that require an import 
        declaration thereby giving industry time to oversee their 
        supply chains for compliance with the Act, and is consistent 
        with available funding.
          Revised the declaration implementation schedule by 
        phasing in products largely based on their degree of processing 
        and complexity of their composition to make compliance easier 
        while importers come to understand their obligations.
          Required import declarations only for formal 
        consumption entries (i.e. most commercial shipments) and not 
        for informal entries (i.e., personal shipments).
          Created special use designations to make it easier 
        for importers to declare certain wood products, such as the 
        ``SPF'' common trade name designation that indicates the 
        product is comprised of several types of spruce,pine, fir 
        lumber
          Begun developing a rule to define ``common food crop 
        and common cultivar,'' which is anticipated to make clear that 
        this statutory exemption excludes large numbers of products 
        from the declaration requirement. Our preliminary economic 
        analysis estimates that these exemptions could save industry 
        and the government between $900,000 and $2.8 million per year 
        just for the five percent of products that is excluded.
          Solicited feedback from the public, through an 
        Advanced Notice of Proposed Rulemaking, to determine the 
        feasibility of adopting de minimis exclusions from the 
        declaration requirement, which would remove even more shipments 
        from compliance with the declaration requirement.
    We have taken great care to listen to our stakeholders, and we have 
made many changes to the implementation schedule based upon their 
feedback. For example, the Agency revised the phase-in schedule to 
temporarily exclude products for which importers indicated it would be 
difficult, if not technologically impossible, to provide full and 
accurate information. In response to comments we received through a 
Federal Register notice, we committed to providing at least six months 
notice before implementing additional phases under the enforcement 
schedule. APHIS has not introduced a new phase of the implementation 
schedule since April 2010.
    We have conducted regular outreach, meeting with stakeholders, 
reaching out to individual importers, and answering questions from the 
general public. Other examples of our outreach efforts include:
          Maintaining a Lacey Act website with information and 
        guidance on how to comply with the Act.
          Developing a Lacey Act primer to educate importers on 
        APHIS' role in implementation of the Act, making it publicly 
        available, and distributing it to industry.
          Meeting with businesses and industry at numerous 
        events to discuss the Lacey Act, and what's necessary for 
        compliance.
          Educating importers about the Act's requirements and 
        how to properly comply with the import declaration requirement 
        when we observe issues with submitted declarations.
          APHIS Federal partners have conducted outreach to our 
        foreign trading partners, educating them about the 2008 
        Amendments. Efforts have included meetings with foreign 
        governments, as well as roundtables, seminars, and workshops 
        with private overseas businesses.
    We are also considering how to proceed with input received in 
response to the June 2011 Advanced Notice of Proposed Rulemaking that 
requested public comments on ways to improve and streamline the 
administration of the declaration requirement. In particular, the 
Agency is looking at developing a de minimis exclusion from the 
declaration requirement based upon the amount of plant material in a 
product, which would further streamline the declaration process.
    In summary, we will continue to implement the 2008 amendments 
through a careful balancing of the requirements of the Act and the 
legitimate concerns of the regulated community.
H.R. 3210, the Retailers and Entertainers Lacey Implementation and 
        Enforcement Fairness Act
    H.R. 3210 contains a number of specific provisions that affect the 
import declaration as well as the enforcement provisions of the Lacey 
Act. With respect to the enforcement provisions, we agree with our 
colleagues at the U.S. Fish and Wildlife Service, that these provisions 
significantly weaken the Lacey Act's ability to protect animal and 
plant resources from dangerous exploitation. We defer to their 
testimony and expertise on this matter. There are, however, several 
items APHIS would like to highlight that deserve attention.
    The RELIEF Act would add a new section to the Lacey Act that makes 
multiple changes to limit the applicability of the 2008 amendments. 
Among these, it would specify that the Act does not apply to any plant 
that was imported before May 22, 2008 (the date of enactment of the 
2008 amendments) or to any finished plant or plant product that was 
assembled and processed before that date.
    APHIS created special-use designations that importers can use on 
the declaration form to indicate that a product was made prior to the 
2008 amendments, exempting them from having to fully declare all 
required information.
    However, goods manufactured and imported into the United States 
after the date of enactment are subject to the substantive prohibitions 
of the Act. We understand that some members of the artisanal musical 
instrument industry may have stores of wood obtained before May 2008 
for which they may no longer have records specifying the information 
required on the Lacey Act declaration. Some of these industry members 
have expressed concerns about their ability to comply with the 
declaration requirement if any of their products are exported and then 
reimported. However, the proposed exemption of all plants and plant 
products of pre-amendment origin goes far beyond this declaration 
issue. In any event, APHIS is only requiring the filing of a 
declaration for products that enter into the country for formal 
consumption; musicians or other individuals who travel with their 
instruments need not file a Lacey Act declaration upon entry into the 
United States.
    The legislation would also provide that the declaration requirement 
applies only in cases where the product is entered into the country for 
formal consumption. This is consistent with how APHIS has implemented 
the Act, and has had broad support from stakeholders. This ensures that 
individuals carrying personal baggage and effects do not need to file 
an import declaration.
    The bill would require APHIS and other involved Federal Agencies to 
fully fund implementation and administration of the import declaration 
from existing funds. The Fiscal Year 2012 appropriation provided the 
first-ever funding for this purpose: $775,000. The President's FY 2013 
budget requests $1.5 million for Lacey Act activities and would allow 
us to begin planning an initial implementation of a web-based procedure 
to help eliminate the need for paper-based declarations. It is, 
however, not clear that this level of funding would enable the Agency 
to carry out all activities contemplated by these amendments.
    In particular, the bill's requirement to create a standard 
certification process for legal imports by individual manufacturers, 
importers, and retailers could prove expensive and difficult to 
implement and administer. The sheer number of individual products, 
individual importers, and individual retailers would make any sort of 
permitting or certification system massive in scope. Beyond just the 
administration and processing of certifications, the provision would 
require substantial resources to ensure accreditation and compliance. 
It would be difficult to verify the legality of the hundreds of 
thousands of plant products coming into the country each month. With 
the size and scope of plants and plant products covered under the Act, 
the Agency would not be able to adequately certify these types of 
products within the FY 2013 Budget.
H.R. 4171, the Freedom from Over-Criminalization and Unjust Seizures 
        Act
    This bill would make a number of changes to the Lacey Act's 
longstanding enforcement provisions that raise concerns, including the 
elimination of criminal penalties, removal of all references to foreign 
laws, and other changes. Because it applies fully to fish and wildlife 
as well as to plants, and relates to the enforcement of the Act, it is 
not appropriate for APHIS to comment and we defer to our Fish and 
Wildlife Service and National Oceanic and Atmospheric Administration 
colleagues.
    Mr. Chairman, thank you for the opportunity to testify today. We 
look forward to working with you and your staff to provide technical 
assistance as you continue to examine this important issue. I would be 
happy to answer any questions that you or the members of the 
Subcommittee may have.
                                 ______
                                 
    Dr. Fleming. I now recognize myself for questions.
    Ms. Sobeck, how many of the foreign laws were triggered by 
the 2008 amendments?
    Ms. Sobeck. I don't have that number. We don't know the 
exact number of laws that are triggered.
    Dr. Fleming. OK. Can you give me just a range? I mean, are 
we talking one or two laws, are we talking a thousand, 10,000? 
Give us some idea.
    Ms. Sobeck. I think it would be fair to say that most 
countries have at least one and probably more laws that relate 
to--that would be--the amendments.
    Dr. Fleming. You said ``both'' countries. What do you mean 
by ``both'' countries?
    Ms. Sobeck. Most countries.
    Dr. Fleming. Oh, most countries, OK. I am sorry. So we know 
Indonesia has over 500 laws alone, so if you multiply that 
times the many countries that interact with the United States, 
you could see where that could easily get into the thousands. 
Is there any requirement for these countries or our country on 
their behalf to reveal the laws to those who might be subject 
to them?
    Ms. Sobeck. I am sorry, I am not sure what you mean.
    Dr. Fleming. If I may be affected by my behavior that may 
trigger a law from another country, and I could be prosecuted 
in this country, what is available through your agency or any 
other that puts me on notice to this fact?
    Ms. Sobeck. We--both the government, business, and----
    Dr. Fleming. I am not a lawyer in Brazil, so I definitely 
don't want to be subject to Brazilian law. So how do you help 
me from that occurring?
    Ms. Sobeck. Well, as some of the folks who testified in the 
previous panel, including Ms. Harman I believe mentioned, the 
industries themselves, NGO's, the government is trying to help 
get industry and people who might be affected to be more 
informed. People speak at conferences, there are educational 
programs around.
    Dr. Fleming. So it is just on the fly? There is no actual 
formal attempt? I mean, for instance, the laws, as I 
understand, that would comply in this situation are affecting 
in some way, the Lacey Act in Brazil are all written in 
Portuguese. Is there any, for instance, a clearinghouse where 
one can go to a single Web site? Is there--have these laws all 
been translated into English?
    Ms. Sobeck. I don't believe--there is not a government-
sponsored clearinghouse or list, and there is not a government 
translation of all of the foreign laws, and as far as I am 
aware, there is not a comprehensive one-stop-spot provided 
outside of the government for those laws.
    Dr. Fleming. So you believe that American citizens should 
be subject to laws of other countries even without any 
reasonable notice or--for instance, we have, those in our 
country, we bend over backwards when we read them their Miranda 
rights, they are in our country where we speak English, and yet 
we will ensure that they receive their Miranda rights in their 
native language, and yet our own citizens are being subjected 
to laws that originate from other countries under which they 
can be prosecuted, and the government has taken no care to 
ensure that those laws are disclosed to them?
    Ms. Sobeck. Nobody will be subject to criminal prosecution 
unless they knew or should have known in the exercise of due 
care that a foreign law--that wildlife or plants were imported 
or----
    Dr. Fleming. If your property is confiscated and you go out 
of business, I would think that is more than just a little slap 
on the wrist, wouldn't you think?
    Ms. Sobeck. Well, you were talking about Miranda rights in 
the criminal context, and I wanted to make sure that you 
understood that the----
    Dr. Fleming. I was just giving that as an example. That 
would apply to civil law as well. I mean, anyone who comes to 
this country, if they can't speak our language, we ensure that 
they get proper representation and in their native language, 
but yet you are telling me that the American citizen in their 
own country is subject to laws from another country, laws that 
aren't even available to them in a language they can't speak.
    Ms. Sobeck. Mr. Chairman, I am saying that for criminal 
prosecution, an individual would have to, or a business would 
have to have exercised due care or have actual knowledge of a 
foreign law in order to be prosecuted, and also that, again, 
our focus is on trafficking in commercial operations----
    Dr. Fleming. What about noncriminal?
    Ms. Sobeck.--and not on individual end users.
    Dr. Fleming. That is, civil penalties, confiscation of 
materials and things that may be very expensive could close a 
business down, subject one to all sorts of secondary penalties, 
maybe IRS penalties and so forth. You are saying, though, that 
they are subject to the laws of other countries, languages that 
they don't necessarily speak, and the government has done 
nothing to ensure that they are disclosed on these laws 
beforehand.
    Ms. Sobeck. I wouldn't say that the government has done 
nothing. As I said, we have tried to participate in voluntary 
information exchange, provide training, speak----
    Dr. Fleming. Very loose and very informally. You have 
really not done anything with due care and due notice to ensure 
that all those are made available. I think we have covered this 
subject adequately. I know where we are on it.
    Mr. Shea, APHIS, these are some numbers I understand that 
come from you actually in your office, 40,000 documents a 
month, that is where we are today; is that correct, sir?
    Mr. Shea. That is correct.
    Dr. Fleming. Where are we going with that? Will that grow? 
Or what percent is that of the total?
    Mr. Shea. Of the total amount that could be possible under 
the Act, we see that number could go as high as 1 million per 
month.
    Dr. Fleming. OK. So--and what is the cost of the 40 million 
documents, I am sorry, 40,000 documents, and what would be the 
cost of a million documents for a month?
    Mr. Shea. It is hard to get that really precisely accurate, 
but when we did some analysis of this, it appeared that it was 
costing somewhere between $38 and $117 per declaration, 
depending on the pay rates of the people actually handling 
these documents for the companies. So there is a range there. 
And so at 40,000 per month, that is about $18- to $56 million 
per year is what we have estimated, and you could extrapolate 
that out to higher numbers. We would hope that there would be 
economies of scale, better compliance as people understand how 
to do the declaration over time.
    Dr. Fleming. The $56 million would be for the 40,000; is 
that right?
    Mr. Shea. That is the high range for the 40,000 mark.
    Dr. Fleming. That is the upper range?
    Mr. Shea. Yeah.
    Dr. Fleming. And so when you get to a million, then you 
would have to multiply that, I am not sure, 40,000, that is 
certainly a fraction of a million. So you are talking about 
probably well into the millions of dollars per year to process 
that?
    Mr. Shea. Certainly absent any efficiencies of scale or 
those sorts of things, the numbers would be fairly significant.
    Dr. Fleming. And who would pay for that?
    Mr. Shea. Most of the cost is what the importer bears now 
to actually fill out the declaration, gather the information 
for the declaration. Some of that is our cost internally in 
USDA to collect and process the forms, but the bulk of those 
costs really are on the importer.
    Dr. Fleming. Right. So perhaps millions or hundreds of 
millions of dollars of cost to the importer that would go to 
the business cost, some perhaps to the government, but perhaps 
most to the business. OK.
    And are these documents currently being reviewed, analyzed?
    Mr. Shea. We are reviewing them to the extent resources 
allow. We only have a few people who work on this. We have only 
received about $775,000 in appropriations to work on this, but 
we are analyzing them to the extent we can. We now have better 
software tools to do that, which allows us to do a better job 
with it, but we are analyzing it to the extent we can.
    Dr. Fleming. That is 40,000 documents a month. Have any led 
to investigations?
    Mr. Shea. We have provided just a few to Fish and Wildlife 
Service or the Department of Justice, and none of them have led 
to official investigations.
    Dr. Fleming. OK. Would that be possibly that you just 
haven't had the personnel to spend the time on the documents to 
find everything you need to find?
    Mr. Shea. I would think if we were looking at a higher 
percentage, we would likely find more problems with the form, 
but I want to emphasize that we think most of the problems with 
the form so far are just the growing pains of understanding 
this requirement, that some of the fields aren't filled out 
properly or left blank, so most of the things we see like that, 
we try to work directly with the importer to help them 
understand for the next time, but certainly over time, we could 
find things by further analysis. For example, a genus or 
species is listed and the country harvested doesn't grow that 
genus or species. So those are the kinds of things we would 
really be looking hard for over time.
    Dr. Fleming. OK. Well, I am the only one left on the dais, 
and I think I have had the majority of my questions answered. I 
do appreciate the witnesses today who have come before us. I 
would like to thank all of our witnesses for their valuable 
contributions and testimony. This has been a very productive 
hearing, I believe. We have made every effort to ensure that it 
was both comprehensive and balanced. Members of the 
Subcommittee may have additional questions for our witnesses, 
and we ask you to respond to these in writing. The hearing 
record will be open for 10 days to receive these responses. We 
have also had some submissions into the record, and without 
objection so ordered.
    I want to thank Members and staff for their contributions 
to the hearing. If there is no further business, without 
objection the Subcommittee now stands adjourned.
    [Whereupon, at 3:54 p.m., the Subcommittee was adjourned.]

    [Additional material submitted for the record follows:]

   Statement submitted for the record by Gary J. Taylor, Legislative 
Director, Association of Fish and Wildlife Agencies, on H.R. 4171, The 
                               FOCUS Act

    The Association of Fish and Wildlife Agencies (Association), 
representing the collective perspectives of the 50 state fish and 
wildlife agencies all of which are members of the Association, strongly 
opposes H.R. 4171 and urgently points out that the proposed FOCUS Act 
would alter the Lacey Act in a significantly negative context. Prior to 
the 1900 Lacey Act, violations of conservation laws could not be 
effectively investigated or prosecuted once the unlawfully taken game 
or wildlife left the jurisdiction where it was illegally taken or 
killed. The Lacey Act gives the United States Fish and Wildlife Service 
(USFWS) Special Agents the ability to assist state, tribal, local and 
other nations in the investigation of fish, game and wildlife crimes 
that would otherwise go unpunished due to lack of resources, funding, 
or more often, jurisdictional considerations. The Lacey Act is 
recognized as one of the most effective federal wildlife laws ever 
enacted and is based on predicate violations of state, tribal, federal 
and international laws.
    The FOCUS Act proposes to remove the potential of large penalties 
for felony violations of the Lacey Act where subjects made large sums 
of money through the unlawful commercialization of illegally taken game 
or wildlife. The ability to levy large fines serves as a deterrent 
against the same subjects accepting a lesser penalty as a ``cost of 
doing business.'' State Wildlife Conservation Officers routinely assist 
USFWS Special Agents in protecting fish, game and wildlife from this 
type of exploitation so that these valuable natural resources are 
available for the lawful consumptive and non-consumptive user alike. 
The FOCUS Act would endanger this valuable protection of these species 
that belong to all the citizens of the respective states.
    Additionally, H.R. 4171 would remove the authority from USFWS and 
NOAA Special Agents and Officers to carry firearms while in the 
performance of their duties. The authority for these Agents and 
Officers to carry firearms only exist in the Lacey Act. Once again, the 
proposed amendments found in the FOCUS Act would endanger the state 
officers if they are assisting a USFWS Special Agent in any type of 
game or wildlife violation and encounter a deadly force situation. 
While state officers would indeed have an issued firearm with them in 
the performance of their duties, a USFWS Special Agent would not. This 
may be a potentially deadly, problematic situation if only state 
officers are armed. In fact, every state General Assembly in the United 
States has authorized full-time state Wildlife Enforcement Officers to 
carry firearms in the performance of their duties. USFWS Special Agents 
vitally need this ability. In a study conducted by the FBI of assaults 
on Conservation Law Enforcement Officers, it was revealed that Agents 
and Officers enforcing environmental and natural resource laws were 
nine times more likely to be assaulted with a dangerous weapon when 
compared to traditional law enforcement officers. The proposals in the 
FOCUS Act regarding this issue are unreasonable and potentially 
decidedly dangerous for the Special Agent and state fish and wildlife 
agency Wildlife Conservation Officers.
    H.R. 4171 raises serious concern from an officer safety 
perspective. The bill clearly removes the ability of agents to carry 
firearms and make warrantless arrests. Not only are the states 
concerned for the safety of the law enforcement agents from NOAA and 
U.S. Fish and Wildlife, with whom the state officers work routinely, 
but also the safety of the state officers who depend upon these agents 
for assistance in conducting joint investigations, as well as serving 
search and seizure and arrest warrants.
    As proposed, H.R. 4171 removes all reference to foreign law as a 
predicate 'violation in enforcing the Lacey Act. Many underdeveloped 
nations around the world possess very rare and valuable plant, animal, 
and mineral resources which are critical to their economies, and are 
highly sought in the world market. In many cases these nations lack the 
governmental resources and structure to protect these treasures and are 
highly dependent upon more developed and wealthy nations, such as the 
United States, to provide significant protection and deterrence toward 
illegal commercialization.
    H.R. 4171 would also provide for elimination of the strong criminal 
penalties which currently exist in the Lacey Act and offer the most 
significant deterrent available in combating the illegal wildlife and 
plant trade. Civil penalties alone are merely a cost of doing business. 
The probability of incarceration and the other societal implications 
associated with a serious criminal penalty surely gives anyone intent 
upon compromising the future of our natural resources pause to 
reconsider.
    Striking subsection (b) and the third sentence in subsection (c) 
(re-designated as (b)), removes many of the investigative tools 
necessary to conduct these investigations, such as the ability for 
judges to issue warrants, and the authority of agents to serve arrest 
warrants, search and seizure warrants, and subpoenas. Without these 
capabilities, the states' enforcement of the Lacey Act will be highly 
ineffective, if not impossible. Many of these criminal acts occur over 
a long time period and the evidence to successfully prosecute these 
complex cases is rarely immediately available. The execution of search 
and seizure warrants and service of subpoenas to obtain all of the 
needed evidence is nearly always essential to a productive outcome.
    In summary, this proposed legislation is contrary to the original 
intent of the Lacey Act and the amendments that have occurred since its 
enactment, and the Association strongly opposes H.R. 4171. The Lacey 
Act has been a foundational component to the success of the North 
American model for wildlife conservation and has served to ensure that 
the nation's natural resources are not exploited and jeopardized by 
unlawful acts. It has served as a valuable tool to the individual 
states of this nation in providing a means whereby violators may be 
held accountable to the rule of law throughout this country.
    Thank you for the opportunity to share the Association's 
perspectives on H.R. 4171.
                                 ______
                                 
    [A letter submitted for the record by Canadian 
Manufacturers & Exporters and the Canadian Manufacturing 
Coalition, on H.R. 3210 and H.R. 4171 follows:]

                   Canadian Manufacturers & Exporters

May 14, 2012
Mr. Harry Burroughs
House Committee on Natural Resources
Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs
U.S. House of Representatives
1324 Longworth House Office Building
Washington, D.C. 20515
Via electronic transmission to [email protected]
Testimony for the record following the subcommittee's hearing on H.R. 
        3210 and H.R. 4171 on May 8, 2012
Dear Mr. Burroughs:
    On behalf of the member companies of Canadian Manufacturers & 
Exporters (CME) and the Canadian Manufacturing Coalition (CMC), I am 
pleased to have this opportunity to submit our comments in regard to 
the 2008 Food, Conservation, and Energy Act amendments to the Lacey 
Act. Our comments here will focus on the requirement that importers 
submit a declaration at the time of importation for certain plants and 
plant products.
    Canada is the largest supplier of plant and plant products to the 
United States. In fact, virtually all of the U.S. newsprint supply 
originates from Canada as do forty percent of paper imports and two-
thirds of pulp imports. The United States marketplace is the largest 
destination overall for Canadian exports, but thirty-seven States in 
the Union point to Canada as their largest customer. Today, our two 
countries have created the world's largest and safest business 
relationship in the world. Through various cross-border forums, we have 
embarked on a vibrant North American competitiveness agenda that has 
the promise of creating good jobs for our future generations. Our 
cross-border supply chain is unique in the world in terms of its 
volume, immediacy and integrated nature of component parts. That 
vibrant relationship has helped to create over seven million jobs in 
small and large communities throughout the United States. No longer do 
we ``trade'' together, we make things together. As evidence of this, 
over one-third of shipments crossing our shared border each and every 
day are comprised of intra-company and intra-industry parts and 
components. Our jobs are your jobs and your best ideas are ours. It is 
a unique and highly beneficial relationship.
    Our companies share the objective of seeking to combat illegal 
logging. Canada has adopted advanced sustainable forest management 
practices that go far beyond the goal of eliminating illegal logging. 
Moreover, Canada has long prohibited the importation into Canada of any 
plant, or any part or derivative thereof, which was taken in 
contravention of any law of a foreign state, through provisions of the 
Wild Animal and Plant Protection and Regulation of International and 
Interprovincial Trade Act and its regulations. In addition, almost a 
third of all companies globally enrolled as supply chain security 
partners with the U.S. Customs and Border Protection (CBP) are Canadian 
companies. Almost all of our cross-border truck drivers are vetted by 
CBP and their Canadian counterpart. We bring this to your attention in 
an effort to underscore that U.S. border requirements affect both 
Canadian and U.S. businesses and the workers they employ.
    Our member companies have joined with their American business 
partners in expressing concern about the implementation of the Lacey 
import declaration requirement. Their immediate worry is that the 
product coverage mandated by the underlying statute will grow to 
include almost all of the tariff items and given that there currently 
is no de minimus threshold, products from logs to cosmetics and 
dashboards of new automobiles will soon be subject to the requirement.
    The imposition of what we feel is an unnecessary and burdensome 
import declaration adds considerable costs to the bottom line of our 
U.S. business partners. The compliance to file the declaration alone 
requires 1.5 man hours per declaration, a nine-fold increase over non-
Lacey shipments. In 2011, according to officials of the U.S. Department 
of Agriculture, Animal Plant Health Inspection Service, the vast 
majority of regulated shipments were imports from Canada. In fact, 
every week, APHIS receives approximately 6,000 such import 
declarations--5,000 electronically and 1,000 using the paper form.
    For these reasons, we would strongly urge the Administration to 
consider an alternate path forward. U.S. Customs and Border Protection 
acts as the primary agency at the U.S. border and for the past several 
years has launched an ambitious re-modernization of their import data 
collection on behalf of many federal agencies. It is our view that CBP 
is best equipped with the electronic resources to collect the necessary 
data requirements to provide the U.S. Department of Agriculture, Animal 
Plant Health Inspection Service, with the important enforcement tools 
to meet the objectives of the Lacey Act.
    Imposing an additional transmission of the same data adds costs for 
both government and business. Our companies on both sides of the border 
must compete in a highly competitive global marketplace, but the import 
declaration in its current form erodes the bottom line for our best 
corporate citizens. Illegal logging is a shared concern for both Ottawa 
and Washington. A shared and modern risk management approach is, 
simply, good public policy.
Sincerely,
Jayson Myers
President & CEO
Canadian Manufacturers & Exporters
                                 ______
                                 
    [A letter submitted for the record by the National 
Association of Conservation Law Enforcement Chiefs follows:]

SUBJECT: H.R. 4171--Freedom from Over-Criminalization and Unjust 
Seizures Act of 2012, or the FOCUS Act Amendments to the Lacey Act.

Robert J. Wittman
1317 Longworth House Office Building
Washington, DC 20515

Dear Robert J. Wittman:

    I am sending this letter on behalf of the National Association of 
Conservation Law Enforcement Chiefs (NACLEC). NACLEC represents the 
executive law enforcement leadership of state natural resource agencies 
from across the country who are charged with enforcing natural resource 
protection and public safety laws.
    For the reasons outlined below, NACLEC is deeply concerned about 
H.R. 4171--Freedom from Over-Criminalization and Unjust Seizures Act 
of2012 (FOCUS Act). The Lacey Act has been effectively applied in every 
state in protecting our fish and wildlife across the country. If 
passed, the FOCUS Act will have serious adverse impacts on our ability 
to protect the natural resources in each of our individual states. It 
also has significant officer and public safety implications through its 
proposal to disarm United States Fish & Wildlife Service (USFWS) 
Special Agents.
    The Lacey Act Amendments of 1981, by President Reagan on November 
16, 1981, combined the original Lacey and Black Bass Acts into a single 
comprehensive statute to provide more effective enforcement of state, 
Federal, tribal and foreign conservation laws protecting fish, 
wildlife, and rare plants. Like the original acts, the 1981 Amendments 
were designed to outlaw the interstate traffic of animals killed in 
their state of origin and to allow for appropriate penalties for those 
involved in their illegal commercialization. The 1981 Amendments 
recognized that misdemeanor penalties were insufficient to either 
provide a deterrent effect or to rate as a priority with federal 
prosecutors.
    The legislative history of the 1981 Amendments includes the 
following excerpt from the ``General Statement of the House''
        ``A massive illegal trade in fish and wildlife and their parts 
        and products has been uncovered through ongoing investigations 
        by the Department of Justice, the Fish and Wildlife Service, 
        the Customs Service and the Departments of Agriculture and 
        Commerce. The serious consequences of such trade may include 
        the introduction of exotic diseases that threaten the 
        agriculture and pet industries, the creation of new markets for 
        the thousands of species taken in violation of state, Federal 
        or foreign laws and the ultimate threat to the survival of the 
        species itself. The purpose of H.R. 1638 is to provide more 
        effective enforcement tools to the wildlife agencies of the 
        state and the Federal Government to control this trade.''
    NACLEC believes that these concerns not only remain today, but are 
heightened by the increased threats that exotic species present to our 
native wildlife and challenges all agencies have creating a climate of 
compliance with fewer resources. The Lacey Act remains an important 
tool for preventing the illegal importation of exotic species and 
creating a climate of compliance with laws designed to protect our 
fish, wildlife and rare plants.
    The global trade in wildlife is a multibillion dollar business 
annually that has illegal elements which in some cases are driving 
species to dangerously low populations. Those involved in the illegal 
trade are often a well organized and create black markets and smuggling 
syndicates to move and trade the world's rarest plants and animals. It 
is important we do not lose the potential for criminal prosecutions for 
fish and wildlife violations that transcend state boundaries. It is an 
important tool and creates a significant deterrence effect. The 
proposed downgrading of the Lacey Act to a mere civil enforcement tool 
presents many concerns. Decriminalization of the Lacey Act will make 
multi-state investigations difficult if not impossible. At present, 
violators who cross state lines with illegal fish and game are in 
violation of the Lacey Act and thereby subject to a Federal search 
warrant so that evidence may be gathered and a prosecution commenced in 
Federal courts. If the Lacey Act is decriminalized, violators will not 
be subject to federal search warrants and may very well be in a ``safe 
harbor'' simply by crossing state lines. Our experience is that those 
involved in the illegal commercialization of fish, wildlife and plants 
can be sophisticated, well financed and often engaged in other illegal 
activities. When these ventures cross state lines, as they almost 
always do, the resources of the USFWS and the enforcement powers 
allowed under the current Lacey Act are essential to a successful 
prosecution. The proposed changes will likely take the USFWS out of the 
picture and make effective enforcement of interstate violations 
virtually impossible. The USFWS is an extremely important partner in 
our conservation law enforcement community, and our collaboration on 
investigations that transcend state boundaries is a key element in 
successfully accomplishing our mission.
    It is our understanding that the impetus for the proposed changes 
is a perceived difficulty in knowing when a species is imported into 
the Unites States in violation of a foreign law. We respectfully 
requests that you not disrupt an essential enforcement mechanism for 
domestic fish and game violations based on that concern. There are 
other alternatives, such as enhanced educational efforts, that can be 
employed to solve that problem, if it is in fact a problem. This act is 
proposed as a solution to a problem. However, solving one narrowly 
focused problem with a sweeping solution that creates bigger problems 
is not the type of solution the taxpayers expect from government.
    Finally, we are concerned with the provision that would remove the 
specific statutory authorization for USFWS officers to carry firearms. 
This is very concerning to us. Every state legislature in the country 
has armed their wildlife enforcement officers, and for good reason. In 
a study conducted by the FBI of assaults on conservation law 
enforcement officers, it was revealed that agents and officers 
enforcing environmental and natural resource laws were nine times more 
likely to be assaulted with a dangerous weapon when compared to 
traditional law enforcement officers. If the reason for this change is 
to limit the ability of USFWS officers to carry firearms, the results 
would endanger not only the officers of the Service, but also the state 
officers who work with these officers in dangerous situations, as well 
as the public we serve. USFWS officers are subject to the same threats 
as any other law enforcement officer and serve a similar public 
protection role. Disarming these officers removes their ability to 
defend themselves, fellow officers, and the public. One only needs to 
pick up a newspaper or turn on the television to see that on a daily 
basis we live in a world where the entire law enforcement community 
needs to be ready to respond acts of terrorism and other threats to 
public safety on a moment's notice. We believe disarming USFWS agents 
would significantly undermine public safety, officer safety, and 
Homeland Security.
    Thank you for considering our views on this issue. It is very 
important to the protection of our fish, wildlife and plants in our 
individual states, and ultimately nationwide.

Sincerely,

Randy J. Stark--President--Wisconsin
National Association of Conservation Law Enforcement Chiefs

Alabama--Alan Andress
Alaska--Steve Bear
Arizona--Gene Elms
Arkansas--Jeff Crow
California--Nancy Foley
Colorado--Bob Thompson
Connecticut--Kyle Overturf
Delaware--Robert Legates
Florida--Jim Brown
Georgia--Eddie Henderson
Hawaii--Mark Young
Idaho--Jon Heggen
Illinois--Rafael Gutierrez
Indiana--Scotty Wilson
Iowa--Robert. Garrison
Kansas--Kevin Jones
Louisiana--Winton Vidrine
Maine--Joe Fessenden
Maine--Joel Wilkinson
Maryland--George Johnson IV
Massachusetts--Aaron Gross
Michigan--Gary Hagler
Minnesota--Jim Kourad
Missouri--Larry Yamnitz
Mississippi--Steve Adcock
Montana--Jim Kropp
Nebraska--Craig Stover
Nevada--Robert Buonamici
New Hampshire--Martin Garabedian
New Jersey--Mark Chicketano
New Mexico--Chris Chadwick
New York--Peter Fannelli
North Carolina--Dale Caveny
North Dakota--Brobert Timian
Ohio--Gary Obermiller
Oklahoma--Robert Fleener
Oregon--Jeff Samuels
Pennsylvania--Richard Palmer
Pennsylvania--Jeffrey Bridi
Rhode Island--Frank Floor
South Carolina--Alvin Taylor
South Dakota--Andy Alban
Tennessee--Darren Rider
Texas--Pete Flores
Utah--Mike Fowlks
Vermont--Dave LeCours
Virginia--Dabney Watts
Washington--Bruce Bjork
West Virginia--Jerry Jenkins
Wyoming--Scott Edberg
                                 ______
                                 

 Statement submitted for the record by Captain Mike Fields, President, 
National Association of State Boating Law Administrators, on H.R. 4171, 
                             The FOCUS Act

    On behalf of the National Association of State Boating Law 
Administrators (NASBLA) I am writing to express my extreme concern 
regarding H.R. 4171--The 2012 FOCUS Act Amendments to the Lacey Act.
    The National Association of State Boating Law Administrators is a 
national nonprofit organization that works to develop public policy for 
recreational boating safety. NASBLA represents the recreational boating 
authorities of all 50 states and the U.S. territories. NASBLA's mission 
is to strengthen the ability of the state and territorial boating 
authorities to reduce death, injury and property damage associated with 
recreational boating and ensure a safe, secure and enjoyable boating 
environment.
    As representatives of the state's on-water law enforcement we have 
certain concerns regarding the ability of our member states to protect 
the natural resources as well as the citizenry in their respective 
jurisdictions.
    In specific regards to the global wildlife trade, the Lacey Act 
remains a vital resource in preventing the illegal importation of 
exotic species and creating a climate of compliance with laws designed 
to protect our fish, wildlife and rare plants.
    Of even more concern to our members however is the proposed 
provision that would remove the specific statutory authorization USFWS 
and NOAA Special Agents and Officers to carry firearms. While the 
states have all reaffirmed the importance of allowing state law 
enforcement officers to carry firearms due to the extreme risk of their 
operating environment, USFWS and NOAA agents are dependent on the 
language in the Lacey Act for this same protection. State law 
enforcement officers routinely work with their Federal partners and it 
is imperative that they all work in coordination and cooperation. 
Recent studies have shown that environmental and natural resource 
officers are nine times more likely to be assaulted with a dangerous 
weapon when compared to traditional law enforcement officers. The 
safety risks are great and disarming these officers removes their 
ability to defend themselves, fellow officers, and the public.
    NASBLA and our members work in close cooperation with many federal 
partners and it is the nexus of local, state and federal law 
enforcement coordination that has greatly improved law enforcement and 
homeland security efforts in recent years. This legislation would 
greatly damage that ability to ensure safety of our officers and the 
general public.
    We are generally very supportive of the work of the Committee, 
particularly when it has related to recreational boating safety, 
conservation management and the protection of our homeland. These 
provisions in H.R. 4171 pose a threat to these initiatives and we hope 
you will consider the dangerous ramifications should they go unamended.
    Thank you for your consideration of our position on H.R. 4171.
                                 ______
                                 
    [A letter submitted for the record by the Northeast 
Conservation Law Enforcement Chiefs Association follows:]

       Northeast Conservation Law Enforcement Chiefs Association

May 7, 2012

Dear Representative Fleming:

    On behalf of the Northeast Conservation Law Enforcement Chiefs 
Association, NECLECA, who is represented by the State of Maine, New 
Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, 
Pennsylvania, Maryland, Virginia, Delaware and New Jersey and the 
Canadian Provinces of New Brunswick, Nova Scotia, Prince Edward Island 
and Environment Canada, we are writing to express our strong opposition 
to H.R. 4171, to amend the Lacey Act Amendments of 1981.
    This bill as proposed would seriously and negatively impact our 
respective states in our ability to protect our valued natural 
resources. In addition, it has significant officer and public safety 
concerns with the proposal to disarm United States Fish and Wildlife 
Service (USFWS) Special Agents.
    As you know, the Lacey Act is recognized as the most effective 
enforcement statute to succesl3fully assist states with the protection 
of our fish, wildlife and rare plants. Routinely natural resources 
illegally taken in our states cross state lines and international 
boundaries. The Lacey Act is the best mechanism used to assist us in 
investigating these crimes and successfully prosecuting the offenders. 
Without the Lacey Act, we could not pursue violators across state lines 
due to our lack of resources, funding and jurisdictional limitations.
    In the past, Lacey Act enforcement actions have been applied in 
each of our states as well as every state in the country. An example of 
how the Lacey Act was used to successfully protect our wildlife species 
is a recent investigation and prosecution in the State of Pennsylvania.
    Five individuals from outside the State of Pennsylvania were 
charged with more than 250 counts of violating their laws as a result 
of killing deer at night, killing deer in closed season and killing 
deer in excess of season bag limits. Also, the USFWS recently arrested 
seven individuals of an organized crime ring trafficking in rhinoceros 
horns. Without this type of effort the continued epidemic of poaching 
these animals will drive them to the brink of extinction in the wild.
    In addition, the Lacey Act also contains statutes that protect our 
native species and fauna with restrictions on invasive plants and 
wildlife. The potential public health concerns and economic costs 
associated with diseases and invasive species within our states should 
be of great concern to all of us.
    The proposed H.R. 4171 removes the statutory authority of United 
States Fish and Wildlife Officers to carry firearms. These officers 
face the same threats as any other law enforcement officer throughout 
the country. Allowing them to be disarmed in today's society is a 
threat not only to their safety but also to the safety of our officers 
who often assist them and the very public we all serve.
    Today our wildlife species continue to be exploited more than ever 
because o the financial gains by' unscrupulous individuals. There is a 
prevalent illegal interstate and international trade in fish and 
wildlife species and their parts and products. It is imperative the 
Lacey Act provisions continue to exist as written to protect our 
natural resources for generations to come.
    We respectfully request' you oppose this legislation as it would 
not only be detrimental to our natural resources, but is also a public 
safety issue involving our federal agents. Additionally, it will put 
dedicated law enforcement professionals on the state and federal level, 
as well as the public they serve, at risk as they serve daily. If we 
may be of any further assistance please contact us at your convenience.

Sincerely,

Colonel Martin S. Garabedian
President
Northeast Conservation Law Enforcement Chief's Association (NECLECA)

                                 

```