Tuesday, December 13, 2011
The Proposed Lacey RELIEF Act
We’ve been discussing Lacey these last few weeks, and I’ll start this post by encouraging you to check some of the previous postings for comments posted by readers.
And we’re not the only ones talking about it—the federal government’s raid on Gibson Guitar last summer kick-started a national discussion on the Lacey Act. Congress, the media, musicians and many people outside the wood industry are all giving Lacey a closer look (or for some, a first look).
Now, in response to the Gibson raid, Rep. Jim Cooper (D-TN) introduced the Retailers and Entertainers Lacey Implementation and Enforcement (RELIEF) Act, in an attempt to eliminate some of the unintended consequences of the 2008 Lacey Act Amendments. The bill currently has 17 co-sponsors (both Democrat and Republican). I would recommend you take some time and read the bill in its entirety–it isn’t that long–so you can see some of the problems Rep. Cooper has identified. There is also an overview of the bill if you would like a shorter summary.
In essence, the bill would reduce penalties for certain first-time offenses, grandfather in plant and plant products produced before the 2008 implementation of Lacey, call for a database of applicable foreign laws to be compiled with which U.S. businesses would be required to comply, and establishes an as-yet undefined certification process. The bill also aims to ensure “no government enforcement of penalties against those who unknowingly violated the Lacey Act.”
This last provision – the concept of an innocent owner—is the one that many in the industry see as the most important. Brent McClendon, executive vice president of the International Wood Products Association spoke passionately on the need for a strengthening of the innocent owner provision. “The fact that an individual or company can perform all the due care in the world, and if found to be in violation of Lacey can still have their goods confiscated without the opportunity to even have their day in court to petition for the return of these goods is not a responsible approach to combating the problem of illegal logging. This law was supposed to go after illegal logging crime syndicates, not innocent Americans.”
Innocent owner protection definitely needs to be considered. After all, having goods seized for an unwitting simple civil violation—without any legal recourse to retrieve the goods—is more than just an inconvenience. For many businesses, the result could be ruinous. The RELIEF Act attempts to strengthen the innocent owner clause of the Lacey Act to restore fairness and improve the effectiveness of the Lacey Act.
A business would still have to prove to a court that it exercised due care (again, innocent owner defenses cannot be used for actual criminal violations). And even with stronger innocent owner protections, a company would still face tremendous costs associated with the legal proceedings (and the not-so-insignificant fact of not having access to the inventory). But, if a business prevails in court, the goods would eventually be returned.
The RELIEF Act will certainly not fix all of the unintended problems of Lacey. It still has a long way to go in defining what this “certification process” would be, and needs to more fully cover the innocent owner concept. There are still many questions—including some I raised over the last few weeks—that would remain unanswered. But as a starting point, it’s a pretty good place to begin the debate.
For more on Lacey in the news, here are a few more links:
Battle Lines Drawn for Amending Lacey Act
Stringing Up Gibson Guitar
Guest Editorial: Gibson CEO Henry Juszkiewicz
NAMM Fights To Amend Lacey Act