Documentation:Open Case Studies/FRST522/The Lacey Act Amendments of 2008

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The Lacey Act Amendments of 2008: drivers and consequences for illegally sourced timber and timber product imports into the USA

Introduction to The Lacey Act

Initially designed to combat the illegal inter-State trade of wildlife within the United States, The Lacey Act was passed by Congress in 1900[1]. The original act did not allow the shipping, across state boundaries, of wildlife killed in violation of any state or territorial law, and required that interstate wildlife shipments were clearly marked[1]. The Lacey Act was significantly amended in 1981[2] and 2008[3].

The Act makes it unlawful for any person to import, export, transport, sell, receive, acquire, purchase or possess any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law within the special maritime and territorial jurisdiction of the United States[4].

Marking offenses deem it unlawful for any person to import, export, or transport fish or wildlife without adequate marks, labels, or tags[4]. The act prohibits the sale or purchase of services or permits that lead to the the illegal taking, acquiring, receiving, transporting, or possessing of fish or wildlife[4]. Submitting false labels during interstate or foreign commerce is prohibited[4]. The trade of food crops and scientific specimens is not covered under The Lacey Act[5]. The 2008 amendments transformed The Lacey Act, as it became the first law to ever ban illegal timber and timber products outright[5].

2008 Amendments

On May 22, 2008, The Lacey Act was amended via the Food, Conservation, and Energy Act[3]. The three major components included[5]:

  1. A ban on the trade of illegally sourced timber and timber products
  2. A requirement to submit an import declaration (country of origin, species, volume, and value)
  3. Penalties for violations

The term "plant" was amended and the Act made it illegal to import, export, transport, sell, receive, acquire, or purchase in interstate commerce or to possess in the United States, any plant taken, possessed, transported, or sold in violation of any law or regulation of any State, or any foreign law, that protects plants or that regulates[4]:

  • the theft of plants
  • the taking of plants from a park, forest reserve, or other officially protected area
  • the taking of plants from an officially designated area
  • the taking of plants without, or contrary to, required authorization

In addition, it is illegal to engage in commerce or possess any plant that has been taken, possessed, transported, or sold[4]:

  • Without appropriate payments (royalties, taxes, stumpage)
  • In violation of any State law or regulation
  • In violation of any foreign law governing the export or transshipment of plants

Important Lacey Act Terms

The Lacey Act explicitly defines these terms used throughout the codified law[4] in order to promote sound interpretation:

  • "Fish or wildlife" means any wild animal, dead or alive, including mammals, birds, reptiles, amphibians, fish, mollusks, crustaceans, arthropods, coelenterates, or other invertebrates. It does not matter whether they are bred, hatched, or born in captivity, and the law protects any part, product, egg, or offspring too.
  • "Import" means to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not it constitutes an importation within the meaning of the customs laws of the United States.
  • "Indian tribal law" means any regulation of, or other rule of conduct enforceable by, any Indian tribe, band, or group but only to the extent that the regulation or rule applies within Indian country.
  • "Law," "treaty," "regulation," and "Indian tribal law" mean laws, treaties, regulations, or Indian tribal laws which regulate the taking, possession, importation, exportation, transportation, or sale of fish, wildlife, or plants.
  • "Person" includes any individual, partnership, association, corporation, trust, or any officer, employee, agent, department, or instrumentality of the Federal Government or of any State or political subdivision thereof, or of any other entity subject to the jurisdiction of the United States.
  • "Plant," in general, means any wild member of the plant kingdom, including roots, seeds, parts, or products thereof, and including trees from either natural or planted forest stands. It does not include food crops or scientific specimens, unless under any international (CITES), federal, or State law.
  • "Prohibited wildlife species" means any live species of lion, tiger, leopard, cheetah, jaguar, or cougar or any hybrid of such species.
  • "Secretary" refers to the Secretary of the Interior, Secretary of Commerce, or Secretary of Agriculture.
  • "State" means any of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, Northern Mariana Islands, American Samoa, and any other territory, commonwealth, or possession of the United States.
  • "Taken" means captured, killed, or collected and, with respect to a plant, also means harvested, cut, logged, or removed, while "Taking" means the act by which fish, wildlife, or plants are taken.
  • "Transport" means to move, convey, carry, or ship by any means, or to deliver or receive for the purpose of movement, conveyance, carriage, or shipment.

These terms will be important for lawyers involved in cases related to The Lacey Act. Also, people that want to become more familiar with The Lacey Act need to be aware of these definitions.

Framing the Problem: Drivers

A Forestry Perspective

For the purposes of this article, the act of "illegal logging" takes place when timber is harvested, transported, bought, or sold in violation of national laws[6].

Globalization has increased the interconnectedness of people and places through markets[7] and illegal logging has found a role in these markets. Major consumers of wood products, such as the United States, the European Union, Japan, and China, provide the demand for wood and the subsequent market for illegally sourced timber and timber products [8]. In 2004, about 3.7% of the world trade in commodities came from wood products[9] and in that year, the United States imported $17 billion and $19 billion in solid wood products and wood fiber products respectively[10]. These consumer countries are being supplied with illegal timber and timber products, with supply chains originating predominantly from tropical forests in South America, Western/Central Africa, and Southeast Asia[11][12]. This is a global issue for both developing and developed countries, as illegal logging and trade in illegal timber and timber products has been documented in over 70 countries[13]. The consumer market is the major driver for illegal logging[12].

An issue with illegal logging is that the global supply chain is long and hard to trace. The chain begins with those people who target areas of a forest that they do not have rights to. Loggers cut these trees and remove them from the forest. Shippers export the logs to a sawmill, sometimes illegally across borders. Manufacturing plants launder illegal wood to make products. Distributors may import an illegal product by falsifying, or not submitting, appropriate documents. Finally, the products are purchased by sellers who make the illegal products available for customers. Illegal forestry activities can occur at any point along the entire supply chain[12]. Some Chinese timber products have been known to be sourced from illegally logged timber from surrounding countries such as Russia and Myanmar and countries such as Malaysia and Thailand have imported many raw materials from Indonesia, Cambodia, and Laos that were derived illegally[13]

Theoretical illegal logging supply chain

Weak governance, poor policies, poor economic structures, and corruption in supply countries represent further drivers of illegal logging. Big corporations with capital to remove, transport, and sell illegally sourced wood are problematic[14]. Illegal logging has also been linked to poverty[12]. Without the proper laws and policies, the supply chain of illegal timber and timber products will continue indefinitely.

The amendments of The Lacey Act in 2008 did not ban or restrict trade of timber products into the United States. However the amendments require buyers to acquire assurances from suppliers that the products do not violate any national or international laws[5]. This forces buyers to pay more attention to the supply chain from which their products came through. Another important component of the Act is "due care," which means that the importer took proper measures to make sure that the supplier was not selling illegally sourced timber or timber products[4]. In a court of law, an importer would want to prove that they did not knowingly import illegal products and that the importer exercised "due care."

Layering Perspectives

The description above describes the problem of illegal logging related imports into the United States from the perspective of a forestry student. In this section, we welcome contributions from other perspectives. Those interested in contributing to this case study may use the following questions as a guide:

  1. How do scholars and professionals outside of forestry conceptualize illegal timber and timber product imports?
  2. What are other ways of framing this problem?
  3. What special expertise, resources, or theoretical orientations might others bring to help us understand this phenomenon better?
  4. What other methods could help dissolve the supply chains of illegal timber and timber products?

Implications

Environmental

There are only negative implications for the effects of illegal logging on the environment. Deforestation, climate change, and loss of important ecosystem services are all driven with help from illegal logging. Tropical forests may change from carbon sinks to carbon sources[15] as deforestation rates are four times that of reforestation rates[16]. Global warming is expected to increase the frequency and intensity of extreme events and could change regional climates, potentially pushing ecosystems permanently past thresholds[17]. Illegal logging contributes to all of these problems, which are interwoven into a dense web of feedback loops that future generations will be left to deal with.

Degraded forests are likely to be lost to land use conversion[12], which would eliminate future forest use for timber and non-timber forest products. There was a net decrease in global forest area of about 3% from 1990-2015[18]. Change in forest cover affects the delivery of many important ecosystem services, such as biodiversity and species richness, climate regulation, carbon storage, water supplies, soil fertility, and erosion prevention[19]. Ecosystem services directly and indirectly contribute to human well-being[20].

Tropical forests store 2.7 and 3.5 times more carbon as temperate and boreal forests, respectively, and are home to two thirds of land based plants and animals[16], yet have the greatest losses in forest cover[18]. In the Brazilian Amazon, selectively logged areas were four times more likely to be completely deforested than non-disturbed areas[21]. In Indonesia, degradation of forests and deforestation dry out peat systems, which store almost a quarter of the world's carbon despite covering 3% of the world's land[16]. This had led to the release of vast amounts of carbon dioxide and increased susceptibility to fire[11]. In 2015 alone, there were over 100,000 fires in Indonesia, releasing huge amounts of carbon dioxide into the atmosphere and costing the Indonesian economy $16 billion[16].

Earth has not fully responded to human made changes and is out of balance[22]. The negative effects of illegal logging are driven by the wood market, which is purely for human benefit at the expense of the environment. The implications of illegal logging and trade of illegal timber and timber products can be slowed by application of laws such as The Lacey Act.

Economic

The United States forest products industry produces around $200 billion in sales every year[11]. The globalized market has impacted the hardwood industry in the United States. The number of jobs in the wood household furniture industry has dropped 60% since the 1970s[23]. The U.S. Bureau of Labor Statistics reported that the logging, wood, paper, and cabinetry industries lost nearly a quarter of their workforce from 2006 to 2010[11]. Since illegal timber can be offered at a lower price, worldwide prices decrease by about 16%[24]. Conservative estimates claim illegal logging has cost U.S. industries over $1 billion and mitigation of this problem could save the country millions of dollars[25]. Illegal logging affects U.S. jobs and the economy in addition to affecting the supply countries.

Supply countries are also greatly affected economically by illegal logging, with estimates claiming that this issue costs developing nations around $15 billion annually[26]. That is billions of dollars that could have stayed within the nations, that is now lost due to illegal logging. Indonesia alone loses out on around $2 billion annually due to factors such as corruption, uncollected taxes, unacknowledged subsidies, and poor resource management[11]. Other exporting countries lose economically due to similar factors. Communities lose too. Local loggers who participate in illegal activities see little payment for their efforts for working in unsafe conditions[11]. One study estimated that only about 2% of the total product value was captured by those local people who illegally logged the forest, and the rest went to middlemen along the supply chain such as brokers, buyers, manufacturers, and exporters[27].

The Lacey Act, a demand-side intervention, has affected the market prices of tropical timber, as estimates indicate double-digit percentage increases in prices and decreases in quantity of tropical lumber imports into the U.S. from Bolivia, Brazil, Indonesia, and Malaysia[28]. In addition, hardwood plywood import prices and quantities from Brazil, Indonesia, and Malaysia have largely changed too[28]. The Lacey Act reduces financial incentives and associated trade of illegal timber and timber products, and promotes non-participation in the illegal wood trade[12]. This benefits governments of producing, processing, and consuming countries by helping them capture revenues from legal logging practices. Local communities, the forest industry, wood product businesses, and consumers will all benefit too[12]. Since the 2008 amendments, estimates claim there was a 30-40% decline in imports of illegal wood into the United States[29].

Political

The Lacey Act only applies to those importing timber and/or timber products into the territory of the United States. It is up to the government to enforce this law, specifically the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service[11]. The jurisdiction of the United States includes all areas that are deemed a "State" (see "Important Lacey Act Terms" section for "State" definition).

The main argument in the court of law is whether or not the individual or company exercised "due care" if they imported illegal timber or timber products. It is the duty of the importer to ascertain the legality of the timber they import. Consequences for violating The Lacey Act are more strict if the importer knew that the species imported were indeed illegal (see "Consequences for Violating The Lacey Act" section). The "due care" process is important for lawyers that are involved with cases involving The Lacey Act.

Social

All social groups, to some extent, are affected by illegal logging. Local and rural communities and those who depend on forests for their livelihoods are affected at the start of the illegal logging supply chain. Illegal logging means illegal logging jobs that demand high risk for workers and that feature few benefits and may lead to violent conflicts with communities[30]. The communities lose as "Nature's Bounty" is decreased and the forest benefits may never be the same. The forests that they once depended on for food, wood for fuel or products, non-timber forest products, and other ecosystem services may never produce the same services as they did before illegal logging. Indigenous people will be affected by illegal logging too if the logging takes place on the lands they depend on. Local, regional, and national governments lose out on the economical benefits of the forests. The higher levels of government become affected by illegal logging as the timber moves up the supply chain and is exported out of the country. They do not receive money from import and export taxes, as the illegal timber and timber products are not officially declared. Consumers are affected at the end of the supply chain, as they are the ones who created the demand and may not even know that they supported the illegal logging supply chain.

Illegal logging also fosters a cycle of bad governance, as those corrupt individuals that illegally exploit forests gain power through money which can then be reinvested in the illegal industry[31]. There may also be increases in poverty when local peoples lose the resources they always depended on[31]. These negative social implications can be mitigated through sound law and policies, such as The Lacey Act, at the highest levels of government. Also, improvements to local forest governance will be key. By bringing all stakeholders together for collaboration, all points of view can be considered. Other impacts can be minimized if there are clear land rights, access to land, State-provided health care, access to education, and equal opportunities for all genders.

Consequences for Violating The Lacey Act

There are several penalties for violating The Lacey Act based on the defendant's knowledge[32]:

  • Civil administrative penalties occur when the defendant knew, or in the exercise of "due care," should have known that the fish, wildlife, or plants were taken, possessed, transported, or sold in violation of a national or foreign law. The U.S. government can enforce a civil penalty of up to $10,000 for this violation.
  • Forfeiture of the fish, wildlife, or plant will occur, even if the defendant did not know of the underlying laws, for example if the timber or timber products were harvested illegally.
  • Fines and imprisonment can occur if the defendant or party knowingly engages in illegal trafficking, while knowing that the fish, wildlife, or plants were taken, possessed, transported, or sold in violation of national or foreign laws. This constitutes a felony prosecution and can be met with fines up to $250,000 (double for organizations) and potential prison time of 5 years. If the defendant or party in the exercise of "due care" should have known of illegalities, their offense is a misdemeanor and penalties can reach $100,000 (double for organizations) and potentially one year of prison.
  • Smuggling and money laundering penalties can be levied on importers who violate The Lacey Act by importing illegal products and laundering money to a foreign seller with the intent to promote illegal activities. Also, submitting false documents violates the 2008 amendment that requires an import declaration. Violators are subject to fines and up to five years in prison.

Cultural

There are cultural consequences related to illegal logging. Indigenous People may lose a sense of their culture if there are issues with traditional land access or degradation. Culturally significant species that they depended on for items such as baskets, canoes, or poles may be permanently lost. In addition, forests may feature special places for Indigenous Peoples and many other cultures alike. These special places may serve as a right of passage for a young person into adulthood or as a religious place for peace and meditation. Illegal logging has the potential to permanently and negatively affect the cultures of many people.

Combatting Illegal Products

The Lacey Act Applied

Gibson Guitar Corp.

The first ever case of the U.S. government enforcing The Lacey Act after the 2008 amendments came in 2012 against Gibson Guitar Corp. Gibson knowingly purchased and imported illegal ebony wood from Madagascar and rosewood and ebony from India to build their products. The investigation resulted in Gibson Guitar Corp. entering into a criminal enforcement agreement with the United States. There were no criminal convictions as the case did not go to court and the company fully cooperated. By admitting to The Lacey Act violations and not being sentenced via court, Gibson Guitar Corp. was penalized with[33]:

  • $350,000 in fines
  • Forfeiture of illegal timber and timber products
  • Gibson Guitar Corp. must implement an environmental compliance plan


Lumber Liquidators Inc. sentenced under The Lacey Act

Lumber Liquidators Inc.

In early 2016, Lumber Liquidators Inc., a hardwood flooring company based in the U.S. State of Virginia, was sentenced in federal court for knowingly importing hardwood flooring products, which were manufactured in China and illegally logged in far Eastern Russia. The company also incorrectly marked which species of wood they were importing on their declaration form at Customs. Lumber Liquidators Inc. is the first company to have a felony conviction related to importing wood and it was the largest fine ever enforced under The Lacey Act[34]:

  • $13.15 million in fines
  • Forfeiture of illegal timber and timber products
  • 5-year term of organizational probation
  • Lumber Liquidators Inc. must implement an environmental compliance plan

Other Laws Promoting Legal Timber Trade

In addition to The Lacey Act, The European Union Timber Regulation went into effect in 2013 based on the EU's policy to fight illegal logging and associated trade as defined in their 2003 Forest Law Enforcement Governance and Trade (FLEGT) Action Plan[5]. This regulation is similar to The Lacey Act, as it prohibits illegal timber and timber products on the EU market. This law also includes that those who place timber on the market must exercise "due diligence" in order to minimize the amount of illegal timber and timber products in the European markets[5].

Australia's Illegal Logging Prohibition Bill (2012) aligns with The Lacey Act and the EU Timber Regulation as it promotes trade in legally harvested timber. There are "due diligence" requirements and penalties for importing illegal timber and timber products[5].

Recommendations

A Forestry Perspective

The Lacey Act requires U.S. buyers to avoid purchasing illegally sourced timber and timber products, but does not outline the best way for companies to do so. Therefore it is up to the buyer to conduct "due care," which may lead to buyers requesting more documentation and potentially legality certification from suppliers[5]. As long as the buyers do not knowingly import illegal products and exercise "due care," then penalties under The Lacey Act will not be stiff. Certification schemes can be helpful in securing a legal supply chain, but are not present in every trade scenario. Simple measures in the following list can help importers and exporters avoid prosecution under The Lacey Act[32]:

  • Pay attention to your customers
  • Understand your sourcing
  • Do not rely on "paper" assurances
  • Do not rely solely upon paper certificates of legality or sustainability (which might be forged)
  • Structure contracts to protect financial interests
  • Pay attention to regulations

The European Union and Australia have passed laws similar to The Lacey Act in order to promote the trade of legal timber and timber products and punish those who import illegal timber products. These laws are only intended to punish those who are importing illegal timber products into the U.S., EU, and Australia. Note that Australia has not yet started to implement their anti-illegal logging Act [2017]. To combat illegal logging, other countries should develop, pass and implement similar laws at the national level. In addition, national governments should also collaborate with all stakeholders within their countries at all scales in order to promote sound forest governance that involves all stakeholders. These suggestions may be difficult to achieve due to corruption in countries that have high rates of illegal logging, but are necessary to mitigate the negative environmental, economic, political, social, and cultural impacts that result from illegal logging.

National governments, inter-governmental organizations, and non-governmental organizations should continue to support initiatives that aid those who depend on forest for their livelihoods. These include financial support, technological support, and actions to improve forest governance. Market-based approaches should aim to promote international policies and partnerships that allow for the world to legally meet demands for wood. Incentive-based approaches should aim for policies that make illegal logging so risky that nobody is willing to participate[12]. Laws and policies that work directly against illegal logging will be the most effective, yet will require stakeholders with financial and technical expertise, such as the United States, European Union, and Australia, to work together with supply countries and all other stakeholders to solve this issue. It will be difficult, but is necessary.

Timber and timber products that are imported into the United States are monitored by Customs officials. They must determine whether or not the imports are legal or not, and the declaration form helps them. However, not every official is trained in the identification of all foreign plant species that are considered illegal and importers have been known to provide false records. Therefore it is necessary to recommend species identification education for those who check timber and timber products as they arrive into the United States.

Layering Perspectives

What recommendations might someone from another discipline or profession make to combat the issue of illegal logging related imports into the United States? Examples might include:

  • Law
  • Geography
  • Environmental Science
  • Social Justice
  • Economics
  • History
  • Anthropology
  • Philosophy
  • Software Engineer
  • Data Scientist

References

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