Lacey Act’s ramifications are being felt

59_pro_aSince Gibson Guitar Co. in Nashville, Tenn., was raided in November 2009 by U.S. federal agents for violation of the Lacey Act, people involved in the woodworking industry, whether they be timber importers or builders of musical instruments, are wondering what caused the raid and what exactly is the Lacey Act.

The Lacey Act, named after Rep. Jim Lacey who introduced it, was enacted in 1900 to control hunting, catching and trade in animals in the United States. It was a fairly obscure statute until May 2008 when an amendment was added to specifically focus on the illegal trade in plants and plant products, including timber, by controlling illicit logging of temperate and tropical forests. The amendment made it a crime to knowingly import into the country any wood species illegally sourced from a U.S. state or foreign country.

Illegal sources include material stolen or harvested from a national park or reserve. The Lacey Act requires importers to provide a document with every incoming shipment that identifies the contents by common name, botanical name, country of origin, quantities and value. All shipments of timber and lumber must be accompanied by a Lacey Act declaration form. The Lacey Act declarations are overseen by the Department of Agriculture and the Department of the Interior's Fish and Wildlife Service and is supported by the Department of Homeland Security, which controls U.S. borders through Customs and Border Protection. If federal agents find evidence of illicit material or activity, the shipment can be seized and the case forwarded to the Department of Justice. Depending on the level of complicity, penalties range from forfeiture to civil and criminal fines to imprisonment.

What are the ramifications for U.S. wood importers and woodworkers?

Obviously, first and foremost, any curtailment of illegal logging is a positive step. Most scrupulous U.S. importers know and trust their overseas wood sources. And most would not knowingly deal in species illegally harvested. I have been in the wood business for more than 30 years and can tell you the origin of every piece of wood I own. Now, with the Lacey Act, all U.S. importers will be more careful to make sure their sources are legitimate. Of course, the extra paperwork just adds to the cost of doing business.

The real impact is with woodworkers both here and abroad that make products that might travel along with their customers in and out of the United States. The luthier that makes concert guitars, the furniture maker that builds living room or bedroom furniture, the stick maker that crafts fine walking canes - all of these woodworkers theoretically will have to abide by the Lacey Act and, if asked by a border or customs agent to produce proof of the origin of woods used in their wooden object, they had better be carrying a Lacey Act declaration form. To this end, I can see that the onus for protecting customers from customs or border problems and possible seizure will fall on the importer or supplier of the woods used in the manufacture of said object. It will be their responsibility to educate their customers about the Lacey Act and, if asked, provide a declaration document.

Back to Gibson Guitar, which was accused of having ebony illegally harvested from a national park in Madagascar. The company, in turn, has accused its European supplier. Action is currently pending.

The ins and outs of the Lacey Act

Here's a brief breakdown of the law's composition and its penalties for those who unlawfully import wood species:

The Lacey Act, initially enacted in 1900, is the United States' oldest national wildlife protection statute and serves as an anti-trafficking statute protecting a broad range of wildlife and wild plants. The Lacey Act makes it unlawful to import, export, transport, sell, receive, acquire or purchase any fish, wildlife or wild plants taken, possessed, transported or sold in violation of state, federal, American Indian tribal or foreign laws or regulations that are related to fish, wildlife or wild plants.

The Lacey Act applies to "wild" animals, whether alive or dead, and wild plants except common food crops and common cultivars. Depending on the underlying federal, state, foreign or tribal law, the term "wildlife" could also apply to any fish, wildlife or plants, or part, product, egg, or offspring thereof, even if bred in captivity.

Additionally, the Lacey Act makes it illegal under U.S. law for persons to import wildlife, wildlife parts or products into the United States that have been taken, possessed, transported, or sold in violation of a foreign law or regulation.

A second enforcement provision prohibits the making or submitting of any false record, account, label or identification of any wildlife transported or intended to be transported in interstate or foreign commerce, or imported, exported, transported, sold, purchased or received from any foreign country.

Prior to the recent amendment, the Lacey Act did not apply to all international traffickers of plants, including timber or associated wood products. Previously, the Lacey Act only covered plants native to the United States that are listed in one of the three appendices to the Convention on International Trade in Endangered Species (CITES) or protected by the law of a U.S. state that conserves species threatened with extinction. The amendments to the Lacey Act extend the statute's reach to encompass products, including timber, that derive from plants illegally harvested in the country of origin and brought into the United States, either directly or through manufactured products. That includes products manufactured in countries other than the country where the illegal harvesting took place.

Penalties for violations

Violators of the Lacey Act provisions can be prosecuted through either civil or criminal enforcement actions.

With respect to potential criminal penalties, a two-tiered penalty scheme exists, creating both misdemeanor and felony offenses, distinguished by a defendant's knowledge of the underlying law.

For a Lacey Act violation to be a felony, the defendant must have knowingly imported or exported fish or wildlife or plants in violation of an underlying law or regulation. Or they must have knowingly engaged in conduct during the offense that involved the sale or purchase of, the offer for sale or purchase of, or the intent to sell or purchase plants or wildlife with a market value of more than $350. And they must have known that the fish or wildlife or plants were taken, possessed, transported or sold in violation of an underlying law or regulation. A misdemeanor penalty requires that the defendant "in the exercise of due care" should have known the fish or wildlife or plants were taken, possessed, transported or sold in violation of an underlying law or regulation.

Civil penalty provisions in most instances require an element of knowledge of the illegal nature of the fish or wildlife or plant in question on the part of the party against whom an enforcement action is brought. However, the Lacey Act's civil forfeiture provisions are enforced on a strict liability basis.

If illegal timber or a product made from illegal timber is brought into the United States, that timber or timber product can be seized whether or not the person from whom it is seized knew of the illegal nature of the product. Nonetheless, the government must still show that a plant, plant product or wildlife has been imported or received in violation of a state or foreign law or regulation.

This information was compiled from the U.S. Forest Service's International Programs website at www.fs.fed.us/global.

Myles Gilmer is the owner of Gilmer Wood Co. in Portland, Ore.

This article originally appeared in the October 2010 issue.