News
October 15, 2013

What, Me Worry? Efforts To Chop The Lacey Act Hack On

Seller Beware: Consumer Protection Insights for Industry

Sure, the debt ceiling crisis, the government shutdown, and the tension in Syria and Iran seem to be grabbing all the headlines. But that apparently won't stop some folks in Congress, who still seem to find time to propose amendments to the Lacey Act, the United States' oldest wildlife conservation law. This time, the proposed amendment appears carefully crafted to address a problem that doesn't really exist, and actually would create a whole lot of problems no one wants. OK, we know that blogging on the Lacey Act at this time may seem a bit out of tune with the central topics of the day. But the proposed amendments draw out our inner Alfred E. Neuman, so we decided to take the bait. Besides, we previously said we'd keep you up on the efforts to amend the Lacey Act. So here goes.

The Lacey Act prohibits the trade in illegally harvested fish, wildlife, and -- thanks to a 2008 amendment -- plants and plant products. Since 2008, the Act has been the focus of media and congressional attention due to high-profile cases like GibsonGuitar (involving, among other things, the seizure and forfeiture of illegal wood), and the recent search by Federal investigators of LumberLiquidators' offices. A House subcommittee held several oversight hearings earlier this year, in May and July, and this renewed interest in the Act has inspired several proposed amendments that are well-intentioned but ultimately unnecessary and fraught with unintended consequences. We told you about Congressman Rick Crawford's bill in a post just a few short weeks ago. Now we're back to talk about the bill Congressman John Fleming introduced last week.

Congressman Fleming's bill, H.R. 3280, the "Lacey Act Clarifying Amendments Act of 2013," would exempt from the Lacey Act any plants imported into the United States before May 22, 2008 (the effective date of the 2008 amendment) and "any finished plant product the assembly and processing of which was completed before May 22, 2008." While the proposal might initially seem like a technical bore, it in fact would have a number of significant unintended consequences that no one really wants. We see three principal problems with the draft bill.

First, it's unnecessary. It seems that the main idea behind the amendment is that it's fundamentally unfair to throw someone in jail if she somehow ended up with illegal, pre-2008 Amendment wood or wood products, but didn't know the stuff was illegal. We agree! But here's the rub: innocent owners already can't be prosecuted under the current version of the Lacey Act. To be clear: if you innocently come to possess illegal wood, you are innocent under the Lacey Act.

So, why the proposed "fix?" The amendment comes out of all the hysteria that followed the Gibson Guitar case. Folks started panicking over an idea that musicians traveling with older musical instruments would be stopped at the border on suspicion of violating the Lacey Act. But the federal agencies charged with enforcing the Lacey Act have made their intentions clear: musicians don't need to worry--the Feds are going after intentional traffickers in illegal wood, and citizens traveling with musical instruments have nothing to be concerned about. Furthermore, in the extremely unlikely event that a truly innocent owner's pre-2008 wood is seized or forfeited, she always can file a "petition for remission," asking the agency to review the particular circumstances and return the wood.

The second problem is that the bill is likely to result in an unfortunate unintended consequence: significantly complicating law enforcement. The amendment would encourage people intentionally trafficking in stolen or otherwise illegal wood products to claim their products were imported or assembled prior to 2008. Disproving such false claims may require complicated and costly technical analyses -- and may in some instances be impossible. By allowing illegally-harvested wood to remain in circulation, the proposed amendment could make it much more difficult for the Feds to catch actual criminals. It would create a huge loophole and make it easy to launder illegal post-2008 wood.

Third, a pre-2008 exemption could help criminals and harm legitimate businesspeople. Wood stolen before 2008 is still stolen wood. The amendment would excuse illegal activity by allowing someone who knowingly imported stolen, illegal, or endangered wood in 2007 to profit from its sale. Excusing illegal activity does not square with our legal system's obligation to protect the rights of the property owners whose wood was stolen. And permitting continued trade in illegally-harvested, pre-2008 wood would increase the supply of illegal wood in the market, depressing prices and hurting law-abiding businesspeople whose prices are undercut by criminals.

The Lacey Act has been helping to provide important protections for legitimate American businesses and legal goods for American consumers for over a century. Congressman Fleming's bill may be well-intentioned, but it could do more harm than good and undermine the goals of the Lacey Act and the competitiveness of legitimate American businesses.

© Arnold & Porter Kaye Scholer LLP 201 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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