Statement from Brent McClendon, Executive Vice President, International Wood Products Association On the Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs Hearing to Improve and Strengthen the Lacey Act
Washington, DC – The IWPA applauds the Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs and Subcommittee Chairman John Fleming for holding a hearing on legislation designed to strengthen the Lacey Act by addressing the unintended consequences of the 2008 Amendments.
We strongly support the goals of the Lacey Act, which is why we want Congress to make important changes to improve it. When Lacey was expanded in 2008 to cover a broad range of plants and trees—and the products made from them—the Amendments resulted in some unintended consequences that are hurting U.S. businesses and costing jobs. Congress must make some simple but vital refinements to Lacey in order to prevent these potentially devastating unintended consequences.
We have specific concerns about four aspects of the 2008 Amendments to the Lacey Act which are actually hurting our collective efforts to identify and root out the true source of illegal logging—organized crime syndicates.
As written, any business that exercised due care and had no knowledge that the seized products contained illegal wood has no standing in court to even argue their case. They have no chance of getting the seized product back, nor do they have any legal recourse to challenge a seizure under the Lacey Act. This affords them the same rights as drug dealers. This is clearly not what Congress intended.
The Lacey Act must make it clear that companies have the right to argue in court that they exercised due care to petition for the return of seized products consistent with civil forfeiture law.
The Scope Problem
As currently written, the scope of the Lacey Amendments is open to interpretation and can be applied to a vast array of foreign laws, including customs or tax-related laws that have no direct bearing on plant protection. In addition, there is no clear mechanism by which potentially relevant foreign laws are clearly identified. As a result, there is an extremely wide and elastic set of foreign laws that could potentially form the basis of a Lacey Act violation, with little guidance to the regulated community.
The Lacey Act should be revised to be more focused and more transparent about the foreign laws that can give rise to a violation under U.S. law. In addition, the Executive Branch should identify in advance the foreign plant protection laws that are the subject of concern, so that businesses can meaningfully perform due diligence on their supply chains with respect to those specific laws, rather than on open-ended and potentially limitless foreign laws.
The Pre-2008 Problem
As written, any wood product that was manufactured before the Lacey Amendments became law (May 22, 2008) – or any new product that was made with pre-2008 wood – is theoretically covered by Lacey. That means that anyone selling or transporting these products without the proper documentation is exposed to criminal or civil liability or product forfeiture. This unprecedented retroactivity is not what anyone intended.
Statutory language must make it clear that the Act does not apply to plants and plant products harvested or manufactured prior to the 2008 implementation of the Amendments.
The Declaration Problem
The 2008 Lacey Amendments require every U.S. import containing wood or plant material to be accompanied by an import declaration form—a bureaucratic burden that had never before been required in Lacey’s 108-year history.
When first implemented, it applied to only a few products, with more to be phased in over time. But even that limited application of this needless bureaucracy clogged the documentation system. By APHIS’ (Animal and Plant Health Inspection Service) own calculation, they are receiving more than 9,200 declarations per week with a cost to government and industry of more than $56 million a year. APHIS is unable to expand the scope of the declaration mandate as required by Lacey. It is worth noting that none of the current Lacey investigations originated from a declaration form.
The declaration experiment clearly is not working as intended. It has merely imposed costs on business without enhancing enforcement or the environmental goals of the law. It should be eliminated.
North America’s wood importers are on the front lines in the fight against illegal logging. But we are hampered in our efforts by a law that threatens our very livelihood with every legal transaction we undertake. The Lacey Act must be amended to remove that uncertainty and to help us all focus on the real culprits—organized crime syndicates.
The world’s leading environmental organizations and the members of the IWPA disagree on policy issues from time to time. But we have one very important common goal: we want to conserve the world’s forests. And despite the occasionally divisive rhetoric of the current legislative debate, there is still virtually universal agreement among business and environmentalists alike that the best way to preserve forests is to promote honest, fair, sustainable and legal trade.
Working together, we can protect the world’s great forests.