Lacey Act Amendments Unnecessary, Threaten Wildlife Protections, Say Administration Officials

“The Lacey Act is the cornerstone of resource protection and conservation law enforcement,” said William Woody, chief of the Office of Law Enforcement at the Fish and Wildlife Service (FWS). “The bills you are considering today would weaken the Lacey Act at a time when it is one of our primary tools for combating unprecedented levels of illegal wildlife trafficking worldwide.” The FWS opposes all four pieces of legislation, said Woody.

The Lacey Act Paperwork Reduction Act would allow importers and those that engage in interstate commerce to keep declarations for relevant wildlife available on demand for the Fish and Wildlife Service and other agencies, rather than require automatic declarations. The Animal and Plant Health Inspection Service (APHIS) has received roughly 2 million declarations since 2008, but only processes a small percentage due to insufficient manpower, said Michael Watson executive director of APHIS. The $10-$30 per declaration importers pay through customs brokers is a real burden, admitted Watson and other witnesses. But many of the objectives the legislation targets can be addressed administratively, said Watson.

About "85 percent of declarations are done electronically through customs brokers and 15 percent on paper,” said Watson. “With our new electronic system that we’re hoping to roll out very soon, we’re hoping that makes the process even easier and less costly.” The APHIS has also begun drafting de minimis action so “minimal” amounts of timber can enter the country free of charge, said Watson. The APHIS defers to the FWS opposition to all four pieces of legislation, said Watson.

The Lacey Act Clarifying Amendments Act would potentially cause unintended economic and environmental consequences by exempting plant products that were protected by the Lacey Act prior to 2008 amendments to the law, said Woody and committee Democrats opposed to the legislation. Subcommittee Chairman John Fleming, R-La., sponsored the legislation in October 2013 (see 13101114). Similar legislation has been debated on Capitol Hill for years, said Marcus Asner, a lawyer with Arnold & Porter who has worked on Lacey Act matters both for the firm and as federal prosecutor, after the October introduction.

The Aquaculture Risk Reduction Act, an amendment that would exempt accidental trafficking of illicit or injurious wildlife from prosecution, aims to find a solution for a problem that does not exist, said Andy Buchsbaum, regional executive director for the Great Lakes Region at the National Wildlife Federation. “Criminal penalties in this section are capped at $10-20,000 depending on the act, and jail time is provided for knowing violations … knowing, criminal violation is the key,” said Buchsbaum. “This amendment doesn’t address knowing violations. It addresses accidental violations, and accidental violations are covered under the act in civil provisions, but not criminal provisions.”

The FWS has never criminally prosecuted an accidental violation of the Lacey Act, said Woody. “So what’s the problem this bill is trying to address?," asked Rep. Alan Lowenthal, D-Calif. "The law is written to keep entities from quote ‘knowingly’ transporting injurious species or in the exercise of due care, should have known of the violation, which is as it should be.”

But the Lacey Act is a complicated and convoluted law that the business community is generally unable to decipher, increasing the possibility of an unintended breach or an unanticipated punishment, said Harrison Pittman director of the Natural Agricultural Law Center at the University of Arkansas. “The basic concern is that individuals would be, even if theoretically, subject to criminal penalties or civil penalties or the threat of prosecution by engaging in … just the ordinary course of what they do.”

The Lacey Act, and notably 2008 amendments to the law, has also, however, helped to crack down on illegal timber imports in the U.S., while helping to foster growth in domestic industry, said Lowenthal. Chinese-imported timber, likely sourced through illegal means and channels, has severely harmed domestic industry and caused entire plants to shutter, said Tom Talbot, CEO of Glen Oak Lumber and Milling.

“This is where the full implementation of Lacey Act becomes vital,” said Talbot. “Despite the well-intentioned efforts to eliminate burdens on the business community, the actual effect will be to eliminate an important tool that allows U.S. authorities to identify and track shipments, particularly those of huge volume and frequency from countries of questionable timber sourcing.” Lawmakers should instead pursue the Invasive Fish and Wildlife Prevention Act, HR-996 (here), a bill that would increase regulation on non-native wildlife and establish an electronic database that makes public all quantities of imports of all live wildlife and the regulatory status of such wildlife, said a number of witnesses and committee Democrats.

But the proposed amendments would generally maintain surveillance and regulation of illicit wildlife, while streamlining compliance and facilitating commerce, said President of Autor Global Strategies Erik Autor, who testified on behalf of the Lacey Act Coalition. “Enforcement and compliance are needlessly expensive and inefficient, due in part to the volume of information being submitted particularly through paper declarations. This problem compromises the quality and utility of the information collected and the ability to do targeted enforcement,” said Autor. The 2008 Lacey Act amendments act as a "non-tariff trade barrier to burden or disrupt" legal commerce, added Autor. -- Brian Dabbs