U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

74-144 PDF 2013

H.R. 3210, ‘‘RETAILERS AND ENTERTAINERS 

LACEY IMPLEMENTATION AND 

ENFORCEMENT FAIRNESS ACT’’ AND 

H.R. 4171, ‘‘FREEDOM FROM OVERCRIMINALIZATION 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 

(II) 

COMMITTEE ON NATURAL RESOURCES 

DOC HASTINGS, WA, Chairman 

EDWARD J. MARKEY, MA, Ranking Democrat Member 

Don Young, AK 

John J. Duncan, Jr., TN 

Louie Gohmert, TX 

Rob Bishop, UT 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Paul C. Broun, GA 

John Fleming, LA 

Mike Coffman, CO 

Tom McClintock, CA 

Glenn Thompson, PA 

Jeff Denham, CA 

Dan Benishek, MI 

David Rivera, FL 

Jeff Duncan, SC 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Kristi L. Noem, SD 

Steve Southerland II, FL 

Bill Flores, TX 

Andy Harris, MD 

Jeffrey M. Landry, LA 

Jon Runyan, NJ 

Bill Johnson, OH 

Mark Amodei, NV 

Dale E. Kildee, MI 

Peter A. DeFazio, OR 

Eni F.H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Grace F. Napolitano, CA 

Rush D. Holt, NJ 

Rau ́l M. Grijalva, AZ 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Dan Boren, OK 

Gregorio Kilili Camacho Sablan, CNMI 

Martin Heinrich, NM 

Ben Ray Luja ́n, NM 

Betty Sutton, OH 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

John Garamendi, CA 

Colleen W. Hanabusa, HI 

Paul Tonko, NY 

Vacancy 

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 

Robert J. Wittman, VA 

Jeff Duncan, SC 

Steve Southerland, II, FL 

Bill Flores, TX 

Andy Harris, MD 

Jeffrey M. Landry, LA 

Jon Runyan, NJ 

Doc Hastings, WA, ex officio 

Eni F.H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Madeleine Z. Bordallo, GU 

Pedro R. Pierluisi, PR 

Colleen W. Hanabusa, HI 

Vacancy 

Edward J. Markey, MA, ex officio 

(III) 

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) 

(1) 

LEGISLATIVE 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 

2 

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 

3 

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 

4 

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 mulVerDate Nov 24 2008 10:54 Apr 30, 2013 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6621 L:\DOCS\74144.TXT KATHY
5 

tiple 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 

6 

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 

Info@ReverbRockock.org 

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, 

7 

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 

8 

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? 

9 

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. 

10 

1 Act of May 25, 1900, Ch. 553, 31 Stat. 188 (codified as amended at 16 U.S.C. §§ 3371–78). 

2 16 U.S.C. § 3371(d), § 3372(a)(2)(A) & (B), § 3372(a)(3)(A), and § 3373(d). 

3Paul 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). 4 Act of May 25, 1900, Ch. 553, 31 Stat. 188 (codified as amended at 16 U.S.C. §§ 3371–78). 

5Proposed Amendments to the Lacey Act of 1981, 97th Cong. 227 (March 18, 1981) (testimony 

of Neal Knox). 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). 

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. 

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

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

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

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. 

11 

7Larkin, supra note 3, at 4. 8Larkin, supra note 3, at 4. 9See 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.). 

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

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

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

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 

12 

10See 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 ASSO- CIATION, 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). 11Sykes v. United States, 131 S. Ct. 2267, 2288 (2011) (Scalia, J., dissenting). 

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

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

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 

13 

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. 

14 

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 un- knowingly 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 comVerDate Nov 24 2008 10:54 Apr 30, 2013 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6621 L:\DOCS\74144.TXT KATHY
15 

mendable 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, illeVerDate Nov 24 2008 10:54 Apr 30, 2013 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6602 L:\DOCS\74144.TXT KATHY
16 

gal 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 firsttime 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. 

17 

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 

18 

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. 

19 

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 

20 

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 outVerDate Nov 24 2008 10:54 Apr 30, 2013 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6602 L:\DOCS\74144.TXT KATHY
21 

lined 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 

22 

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 enviVerDate Nov 24 2008 10:54 Apr 30, 2013 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6602 L:\DOCS\74144.TXT KATHY
23 

ronment 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 mid1960s, 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, 

24 

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 

25 

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 

26 

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:] 

27 

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. §§ 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 servVerDate Nov 24 2008 10:54 Apr 30, 2013 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 L:\DOCS\74144.TXT KATHY
28 

ices 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 underVerDate Nov 24 2008 10:54 Apr 30, 2013 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 L:\DOCS\74144.TXT KATHY
29 

standing, 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 

30 

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:] 

31 

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 reVerDate Nov 24 2008 10:54 Apr 30, 2013 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 L:\DOCS\74144.TXT KATHY
32 

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. 

3 16 U.S.C. sec. 3372(a)(2)(B). 

quirement 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

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. 

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. 

33 

4 H.R. 3210. 

5 H.R. 4171. 

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. 

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 harVerDate Nov 24 2008 10:54 Apr 30, 2013 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6602 L:\DOCS\74144.TXT KATHY
34 

vested 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 

35 

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 overregulation and its effects on jobs and the economy. We know firsthand about wellintentioned 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 forestbased 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. 

36 

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 timberrich 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 phasedin 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 UKbased 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, familyowned 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 

37 

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 heavyhanded 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 reVerDate Nov 24 2008 10:54 Apr 30, 2013 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6621 L:\DOCS\74144.TXT KATHY
38 

quirement 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 phasein 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. 

39 

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 

40 

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. 

41 

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 

42 

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 

43 

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. 

44 

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 CoDirector 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 

45 

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. 

46 

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 

47 

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 pre2008 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 

48 

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 

49 

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:] 

50 

1 18 U.S.C. §§ 42—43; 16 U.S.C. § 3371 et seq. 

2That 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). 3See generally City of Chicago v. Morales, 527 U.S. 41 (1999); Grayned v. City of Rockford, 

408 U.S. 104, 108 (1972). 4 18 U.S.C. §§ 981, 983(d)(1). 

5See 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). 

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

Also, Congress enacted 16 U.S.C. § 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. 

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 

51 

6See 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. §§ 983(d)(2)—(3). 

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. 

10See Lacey Act Amendments of 1981, Pub. L. 97–79. 11 16 U.S.C. § 3372(a)(2). 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). 13See 16 U.S.C. § 3373. 14Lacey 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: 

Continued 

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. 

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

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. § 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 § 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.’’ 

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 

52 

[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. 

15Tanczos, 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). 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). 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). 21See Affidavit of Special Agent John M. Rayfield in support of Search Warrant 11–MJ–1067 

A, B, C, D at ¶¶ 15–18 (Aug. 18, 2011) available at http://www.scribd.com/srcohiba/d/63869457– 

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

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. 

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 

53 

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. 24McNab, 324 F.3d at 1268. 25 Id. at 1270 (citations omitted). 26See Luna, The Overcriminalization Phenomenon, 54 American Univ. L. Rev. 703, 715 (2005). 27Morales, 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). 

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. 

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

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. 

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 

54 

28The 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. 31 18 U.S.C. § 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. § 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 § 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. § 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. 35The 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). 

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. 

B. The ‘‘Contraband’’ Problem 

In 2008, Congress amended Lacey by adding 16 U.S.C. § 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 § 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

Notwithstanding § 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 § 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 § 3374(d) and CAFRA itself.36

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 

55 

37See 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. 38 H.R. 4171, §§ 2(a), (b). 39 Id. § 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 § 3(a). 

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. 

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 overcriminalization 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. § 3374(d) in 2008. It is time now to finish the job. 

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. 

56 

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? 

57 

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 

58 

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 exempVerDate Nov 24 2008 10:54 Apr 30, 2013 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6602 L:\DOCS\74144.TXT KATHY
59 

tion 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 

60 

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 

61 

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. 

62 

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. 

63 

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 

64 

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:] 

65 

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. 

66 

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 prodVerDate Nov 24 2008 10:54 Apr 30, 2013 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6621 L:\DOCS\74144.TXT KATHY
67 

1Marilyn Pereira Goncales, et al. Justice for Forests: Improving Criminal Justice Efforts to 

Combat Illegal Logging. Washington, D.C.: World Bank, 2012. 

ucts 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. 

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 imVerDate Nov 24 2008 10:54 Apr 30, 2013 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6621 L:\DOCS\74144.TXT KATHY
68 

plementing 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 

69 

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. 

70 

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. 

71 

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 

72 

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 

73 

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 reVerDate Nov 24 2008 10:54 Apr 30, 2013 Jkt 000000 PO 00000 Frm 00077 Fmt 6633 Sfmt 6621 L:\DOCS\74144.TXT KATHY
74 

quirement. 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 

75 

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 

76 

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. 

77 

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 

78 

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 

79 

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 Harry.Burroughs@mail.house.gov 

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 

80 

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 

81 

[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 

82 

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 

83 

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. 

84 

[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) 

Æ