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The Lacey Act

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The Lacey Act (16 U.S.C. SS 3371-3378)

The Lacey Act was introduced by Iowa Congressman John Lacey (House of Representatives) in the spring of 1900. It was signed into law by President William McKinley on May 25th of the same year. The Act was intended to preserve game and wild birds by making it a federal crime to poach in one state with the purpose of selling in another. It was also concerned with the introduction of non-native, or exotic species of birds and animals into American native ecosystems. It was intended to strengthen existing State laws for the protection of game and birds.

The Lacey Act protects both plants and wildlife by creating civil and criminal penalties for a wide array of violations. The Act prohibits trade in wildlife, fish and plants that have been illegally taken, possessed, transported or sold. The Act makes it a separate offense to take, possess, transport or sell wildlife taken in violation of other existing laws. The Act also prohibits the falsification of documents for shipments of wildlife (a criminal penalty) and prohibits the failure to mark wildlife shipments (civil penalty). The Lacey Act is administered by the Departments of the Interior, Commerce, and Agriculture through their respective agencies. These include the U.S. Fish and Wildlife Service, National Marine Fisheries Service and Animal and Plant Health Inspection Service.

The Act has been amended several times since 1900. In 1981 Congress adopted the legal standard (of the mental state) of “knowingly” for criminal violations, and civil penalties were expanded to apply to negligent violations. Indigenous plants were added to the protected species. The maximum civil fine was raised to $10,000 and a bifurcated felony / misdemeanor scheme was created under the statute based on the conduct of the offender and the market value of the species at issue. Under the felony portion of the statute, the maximum penalty was set at $20,000 and / or 5 years imprisonment; misdemeanor violations were set at $10,000 and / or up to 1 year imprisonment. The amendments also allowed for warrantless arrest for felony violations under the Act and expansion of the role of federal wildlife agents.

In 1988 the amendments created a separate and distinct violation for the intended falsification of documents for exporting, importing or transporting of wildlife, fish or plants. The felony provision of this part of the act was amended so one could be convicted if they knew of the import or export of the species or if they were involved in the sale or purchase of wildlife, fish, or plants with a market value greater than $350.

Amended June 18th, 2008

The Lacey Act was amended by the Food, Conservation, and Energy Act of 2008 (also known as the 2008 Farm Bill) and passed Congress into law on June 18th, 2008. The changes were championed by Representative Earl Blumenauer of Oregon’s 3rd district and Senator Ron Wyden of Oregon. The bill was basically a continuation of the 2002 Farm Bill by continuing subsidies to certain domestic agricultural products, increasing support for cellulosic ethanol, providing money for research into pests, diseases and other agriculturally related problems. There were, of course, riders that included increases to Food Stamp benefits, energy, conservation and rural development.

The Lacey Act, however, was dramatically effected. The definition of ‘Plant’ was broadened to be: “Any wild member of the plant kingdom, including roots, seeds, parts or product thereof, and including trees from either natural or planted forest stands.”

The following is intended to address only those portions of the Act that relate to the stringed instrument business. This is not intended to be a legal brief. Consult your lawyers for a proper analysis.

The Lacey Act (as amended) is now intended to cover illegal harvesting. The purpose is to enable enforcement of responsible conservation practice by making it illegal to import any woods that are illegally or irresponsibly harvested. Prior to the current amendments, the Lacey Act only covered endangered plants (like those listed in CITES). The proposed method of enforcement is to require written declarations for the import, export, purchase, sales or transport of the plant materials in the raw, or built into the instruments. If the declarations are incomplete or inaccurate, the materials can be seized and the parties heavily fined or imprisoned or both. The fines now can reach $500,000.

Because the Act covers illegal harvesting, there is no list of acceptable plants – like the appendices of CITES. It applies to all plants.

The declaration, filled out on a U.S. Department of Agriculture form (APHIS: Animal and Plant Health Inspection Service, Plant Protection and Quarantine), must include all the plants used to manufacture an instrument. These are to be listed as their:

Article/Component
Plant scientific name (Genus & Species)
Country of harvest
Quantity of plant material
Unit of measure
Percent recycled material.

When it is not certain what a particular wood is, the Act requires that all possible scientific names (genus & species) be listed. Rosewood, for example, might be Indian, Brazilian, African, Cocobolo, Pao, etc. When each possible name is used with the scientific options, Rosewood (Dalbergia) could cover 12 variants and many more similar woods, some FSC grown and some endangered (like Brazilian ‘Nigra’). There is certainly room for confusion.

The Lacey Act is entirely separate from CITES and other international trade declaration requirements. A wood product being imported with proper CITES documentation, also requires the separate Lacey Act declaration documentation. This documentation does not require demonstration of the ‘chain of custody’. The Act applies to all countries and is intended to be in addition to all laws, foreign and domestic, that may also apply.

The Lacey Act amendments are being phased in over approximately 1 year. The Federal Register of September 2nd, 2009 covers this topic.

It appears that all new guitars and mandolins will be required to have some form of documentation showing the origins of their component parts. Any instrument built in the US or abroad may be sold abroad at some point. It would seem, therefore, that they will all require documentation. It is too early to tell what form this might take.

More information:

The Lacey Act – USDA – Plant Health
Look up the scientific names of plants
Federal Register: September 2nd, 2009
Video description of the ammendments to the Lacey Act
Lacey Act: Frequently Asked Questions
Lacey Act: Declaration Form

Thanks to information from Rebecca F. Wisch of the Animal Legal & Historical Center, information published by Michigan State University College of Law. The information was edited to focus more on the plant aspects of the Lacey Act. See Ms. Wisch’s full text on the Animal Legal & Historical Center site.
ⓒ 2010, Leonard Wyeth