The Lacey Act: Protecting the Environment by Restricting Trade
This report looks at the history and applications of the Lacey Act, which allows the U.S. to enforce the laws of other countries.
The Lacey Act: Protecting the Environment
by Restricting Trade
Kristina Alexander
Legislative Attorney
January 14, 2014
Congressional Research Service
7-5700
www.crs.gov
R42067
The Lacey Act: Protecting the Environment by Restricting Trade
Summary
The Lacey Act was enacted in 1900 to prevent hunters from illegally killing game in one state and
escaping prosecution by crossing state lines. It has evolved into a law that prohibits import,
export, transport, purchase, or sale of species when that action would violate state, federal, tribal,
or foreign law. Congress amended the Lacey Act most recently in 2008, expanding the reach of
the act to include timber and timber products. Implementation of the 2008 Amendments has
proved controversial, and the Department of Agriculture Animal and Plant Health Inspection
Service (APHIS) initially delayed implementing the act’s new declaration requirements for
importing wood products.
Some find the Lacey Act puzzling. While people charged with violating the act are charged with
violating a U.S. law, that prosecution is premised on a violation of another law, sometimes the
law of another country. That has led some to claim that the United States is enforcing the laws of
another country. U.S. conservation laws (such as the Lacey Act), however, have long protected
species and habitats even outside of the United States. Worldwide conservation was one reason
for expanding Lacey Act coverage to more plants in 2008. Preserving U.S. timber jobs and prices
was another reason. However, the 2008 Amendments to the Lacey Act allow enforcement of
foreign laws that are not directly related to conservation or U.S. jobs, such as failure to pay
foreign stumpage fees, or shipping wood in violation of a country’s export restrictions. After
search warrants were executed by the Department of the Interior Fish and Wildlife Service (FWS)
against Gibson Guitar Corp. of Nashville, TN, in August 2011, based on the possible illegal
import of wood from India, the 112th Congress took another look at whether the 2008
Amendments achieve the goals of the Lacey Act. Bills in the 113th Congress would alter how the
2008 Amendments are applied (H.R. 3280 and H.R. 3324) by establishing a grandfathering
provision and changing the declaration requirement, respectively.
In July 2012, Gibson settled charges that imports in 2008 and 2009 had violated the Lacey Act,
agreeing to pay a $300,000 penalty, make a $50,000 donation to a wildlife nonprofit group, and
withdraw its claims to recover wood forfeited during the Madagascar investigation. The United
States returned the wood from India seized in 2011. As part of the settlement, the United States
agreed that Indian trade law, on which the alleged 2011 violations were based, was unclear.
However, Gibson admitted that it had continued to import ebony from Madagascar after learning
that it was illegal.
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The Lacey Act: Protecting the Environment by Restricting Trade
Contents
Background of the Lacey Act .......................................................................................................... 1
The 2008 Amendments .............................................................................................................. 1
Legislative History of the 2008 Amendments ..................................................................... 2
Lacey Act Prohibitions Related to Wildlife ..................................................................................... 2
Violations of U.S. or Tribal Law ............................................................................................... 2
Violations of State or Foreign Law ............................................................................................ 3
Lacey Act Prohibitions Related to Plants ........................................................................................ 5
Violations of U.S. or Tribal Law ............................................................................................... 5
Violations of State or Foreign Law Protecting Plants................................................................ 6
Violations of State or Foreign Law Requiring Fees .................................................................. 7
Violations of State or Foreign Law Restricting Export ............................................................. 8
Declaration ................................................................................................................................ 8
Lacey Act Penalties: Civil Violations, Felonies, Misdemeanors, and Forfeiture ............................. 9
Civil Violations .......................................................................................................................... 9
Misdemeanors.......................................................................................................................... 10
Felonies ................................................................................................................................... 11
Forfeiture ................................................................................................................................. 12
Gibson Guitar and the 2008 Amendments ..................................................................................... 14
Background.............................................................................................................................. 15
What the Affidavit for the Gibson Warrants States.................................................................. 15
Shipment of June 27, 2011 ................................................................................................ 16
Shipment of June 20, 2011 ................................................................................................ 17
Other Shipments to Gibson ............................................................................................... 17
Settlement ................................................................................................................................ 18
Legislation ..................................................................................................................................... 19
Figures
Figure A-1. Phase-In Schedule of Enforcement of the Declaration Requirement for Goods
of, or Containing, Plants or Plant Products ................................................................................. 20
Tables
Table 1. Documentation Accompanying Shipment of June 27, 2011 ............................................ 16
Appendixes
Appendix. Declarations Enforcement Chart .................................................................................. 20
Contacts
Author Contact Information........................................................................................................... 20
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The Lacey Act: Protecting the Environment by Restricting Trade
Background of the Lacey Act
The Lacey Act addresses conservation by targeting trade. As adopted in 1900, the Lacey Act
made it a federal crime to ship game killed in violation of one state’s laws to another state.1 It also
regulated the introduction of non-native species and prohibited shipment of wildlife without clear
identification of the contents and shipper.2 This report will examine the portions of the Lacey Act
that pertain to transporting fish, wildlife, and plants that were taken in violation of another law,
and will not address the other provisions of the act.
While it has been amended many times since 1900, the Lacey Act’s format has remained the
same: with respect to fish, wildlife, and plants, generally speaking, it is a violation of the act to
violate another law, be it state, federal, tribal, or foreign. Accordingly, making a case under the
Lacey Act requires a violation of an underlying law as well as a violation of the act itself.
The act has a broad reach. It applies to any person, with person defined to include individuals,
corporations, government officials, and government agencies.3 It covers violations of state,
federal, tribal, or foreign laws (including regulations) that regulate “the taking, possession,
importation, exportation, transportation, or sale” of wildlife or plants.4 It is enforced by the Fish
and Wildlife Service (FWS) of the Department of the Interior, the National Oceanic and
Atmospheric Administration of the Department of Commerce, Customs and Border Protection
(CBP) of the Department of Homeland Security, and the Animal and Plant Health Inspection
Service (APHIS) and the Forest Service of the Department of Agriculture.5
The 2008 Amendments
In 2008, the Lacey Act was amended, expanding the definition of plants to include trees and plant
products, and prohibiting different types of trade related to plants. In August 2011, FWS executed
search warrants for the premises of Gibson Guitar Corp. reportedly based on Gibson’s violations
of the 2008 Amendments when Gibson allegedly imported unfinished wood in violation of India’s
export laws (laws the U.S. government later conceded were vague).6 Because Gibson has claimed
its imported wood was sustainably harvested, some argue that the 2008 Amendments do not
conserve environmental resources exclusively but can hurt U.S. workers by enforcing foreign
laws that protect foreign workers. Others argue that the act protects U.S. jobs. For more
discussion on the policy behind the amendments, see CRS Report R42119, The Lacey Act:
Compliance Issues Related to Importing Plants and Plant Products, by Pervaze A. Sheikh.
1 Act of May 25, 1900, §3, 31 Stat. 187.
2 Act of May 25, 1900, §2 and §4, respectively, 31 Stat. 188.
3 16 U.S.C. §3371(e).
4 16 U.S.C. §3371(d).
5 See 16 U.S.C. §3371(h) (defining Secretary as the Secretary of the Interior and the Secretary of Agriculture);
16 U.S.C. §3373(a) (stating that the provisions will be enforced by “the Secretary, the Secretary of Transportation,
or the Secretary of the Treasury”).
6 See Criminal Enforcement Agreement between Department of Justice and Gibson Guitar Corp. (July 27, 2012),
http://www.fws.gov/home/feature/2012/USvGibsonGuitarAgreement.pdf.
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Legislative History of the 2008 Amendments
According to the legislative history for the 2008 amendments, its purposes were two-fold: to
promote ecosystem protection and to aid the U.S. timber industry. According to the House
conference report, the amendments address the following problems:
[I]llegal logging undermines responsible forest enterprises by distorting timber markets with
unfair competition and price undercutting. Illegal logging also threatens the conservation of
forest resources, wildlife, and biodiversity, by facilitating forest conversion to non-forest
uses and depleting or completely eliminating certain forest ecosystems or the habitat of
certain forest dependent wildlife. Finally, illegal logging results in a loss of revenue when
taxes or royalties are not paid that could otherwise be invested in sustainable forest
management or economic development.7
Senator Wyden, a co-sponsor of a bill that led to the 2008 Amendments, described the benefits of
the act as follows: “This legislation will raise the risks for illegal trade without harming legal
trade and will be an important step toward leveling a playing field currently stacked against the
U.S. forest products industry and importers and retailers committed to trading in legal wood
products.”8
Senator Alexander, another co-sponsor, discussed the bill’s projected economic impact of illegal
timber imports: “[I]t is an estimated $1 billion a year in depressed prices and reduced exports. It
depresses prices $500 million to $700 million annually. It means the people who play by the rules
in the United States are having money taken from them by criminals who don’t play by the rules
in other countries ...”9
Lacey Act Prohibitions Related to Wildlife
Because of the complexity of the act, involving federal, state, and/or foreign laws, the act is best
analyzed with respect to the type of goods it seeks to protect. This report will first look at those
parts of the Lacey Act pertaining to wildlife. Plants will be discussed later in the context of the
2008 Amendments. However, as will be discussed in greater detail below, with respect to both
wildlife and plants, penalties for Lacey Act violations are based on the degree of knowledge or
care taken by the alleged offender, while forfeiture of protected wildlife and plants under the
Lacey Act is on a strict liability basis.
Violations of U.S. or Tribal Law
The act uses the term fish or wildlife to include “any wild animal, whether living or dead ...
[including] any part, product, egg, or offspring thereof.”10 This report will simply use the term
wildlife. There are two types of prohibited acts pertaining to wildlife. The first makes it illegal to
“import, export, transport, sell, receive, acquire, or purchase” wildlife if that creature was “taken,
possessed, transported, or sold in violation of any law ... of the United States or in violation of
7 H.Rept. 110-627; 1981 USCCAN p. 127, 536. (May 13, 2008).
8 S. Cong. Rec. 15622, at 15635 (December 14, 2007).
9 S. Cong. Rec. at 13968 (November 6, 2007).
10 16 U.S.C. §3371(a).
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any Indian tribal law.”11 In this case, a violation of a federal law that regulates wildlife is also a
violation of the Lacey Act if the wildlife in question was imported, exported, transported, sold, or
received.
Example12 1 (Section 3372(a)(1))
Assume a person has killed a hummingbird in the state of Oklahoma. That is a violation of the Migratory Bird Treaty
Act (MBTA), a federal law.13 However, it is not a violation of the Lacey Act. Even though wildlife was taken in
violation of a federal law, that wildlife was not then imported, exported, transported, sold, received, acquired, or
purchased, as required for a Lacey Act violation.
Example 2 (Section 3372(a)(1))
Assume a person has killed a hummingbird in the state of Oklahoma. That person has violated the MBTA. That
person then sel s the feathers to a person in Oklahoma. By making the sale, that person has also violated the Lacey
Act because there was a sale of wildlife (which by definition includes parts of that animal) that was taken in violation
of a federal law. The buyer also has violated the Lacey Act because the buyer purchased wildlife that was taken in
violation of a federal law.
Violations of State or Foreign Law
The second type of wildlife prohibition under the Lacey Act involves interstate or foreign
commerce. Section 3372(a)(2)(A) of the Lacey Act makes it illegal to “import, export, transport,
sell, receive, acquire, or purchase in interstate or foreign commerce” wildlife if that wildlife was
“taken, possessed, transported, or sold in violation of any law or regulation of any State or in
violation of any foreign law.”14 For this type of violation, the underlying law must be state or
foreign. It should be noted that while a violation of foreign law can be a predicate act, punishment
is based on United States law, not foreign law.
While the language clearly includes state regulatory violations as a predicate act to a Lacey Act
violation (“in violation of any law or regulation of any State”), it is not so clear from the statute
whether violations of foreign regulations may also be the basis for a Lacey Act violation. Courts,
however, have held that foreign regulations may be the foundation for a charge. The Eleventh
Circuit reviewed congressional intent before holding that violations of foreign regulations and
other legally binding provisions are also a basis for making a Lacey Act enforcement case.15 The
Ninth Circuit found that Congress used the term “foreign law” so it would encompass the many
forms that foreign legal edicts may take.16
11 16 U.S.C. §3372(a)(1).
12 The Examples in this report should be considered hypothetical situations and not factually or legally true.
13 16 U.S.C. §703(a).
14 16 U.S.C. §3372(a)(2)(A).
15 See United States v. McNab, 331 F.3d 1228 (11th Cir. 2003).
16 United States v. 594,464 Pounds of Salmon, 871 F.2d 824, 826 (9th Cir.1989).
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Example 3 (Section 3372(a)(2)(A))
Assume a person has killed a deer in violation of Wisconsin’s hunting laws. The deer is field dressed and consumed
without leaving the state or entering commerce. There is no violation of the Lacey Act because there is no interstate
commerce.
Example 4 (Section 3372(a)(2)(A))
Assume a person has killed a deer in violation of Wisconsin’s hunting laws by hunting in an area where it is not
allowed—for example, a petting zoo. The venison is sold to a person in interstate commerce. Because interstate
commerce was involved, the seller has violated the Lacey Act. Likewise, the buyer also has violated the Lacey Act.
The Lacey Act has an expanded use of the term sale in the context of wildlife violations. It deems
an offer to provide guiding or outfitting services, or to provide a hunting or fishing license or
permit as a sale.17 Accordingly, obtaining a hunting license in violation of tribal law can be the
predicate violation of the Lacey Act.18
Before a violation occurs under either Section 3372(a)(1) or Section 3372(a)(2)(A), both parts of
the Lacey Act must be triggered—the underlying or predicate law and then the Lacey Act. Courts
must determine the validity of both the predicate violation and the action that triggers the Lacey
Act charge. Where the predicate violation is one of foreign law or regulation, the federal courts
have the authority to determine whether a foreign law has been violated.19 Federal courts also
have jurisdiction when the underlying violation is one of tribal law.20
Establishing violations of foreign law can lead to complicated situations. For example, the United
States seized the hide and horns of an Afghan Urial, a type of big horn sheep, imported to Virginia
from Pakistan. The importer of the animal argued that Pakistan had no national law protecting the
Urial and that he had a valid permit from the province where it was taken. The Fifth Circuit held
that a Pakistani law that prohibited the export of wild animal hides barred the export of the Urial
pelt.21 In another case a man was convicted of importing spiny lobsters to the United States that
were caught in violation of Honduras law. By the time the conviction was appealed, “the
Honduran government reversed its position; it [refuted] the validity of the laws it previously
verified.”22 The Eleventh Circuit held that Honduras law at the time the conduct occurred
prohibited harvesting the spiny lobsters and upheld the Lacey Act conviction.23
17 16 U.S.C. §3372(c).
18 See United States v. March, 111 Fed. Appx. 888 (9th Cir. 2004).
19 Fed. R. Civ. P. 44.1: “... In determining foreign law, the court may consider any relevant material or source,
including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The
court’s determination must be treated as a ruling on a question of law.”
20 United States v. March, 111 Fed. Appx. 888 (9th Cir. 2004).
21 United States v. One Afghan Urial Ovis Orientalis Blanfordi Fully Mounted Sheep, 964 F.2d 474 (5th Cir. 1992).
22 United States v. McNab, 331 F.3d 1228, 1232 (11th Cir. 2003).
23 United States v. McNab, 331 F.3d 1228, 1242 (11th Cir. 2003).
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In determining that the predicate violation occurred, the court does not have to find that the
procedures of that jurisdiction were followed. Federal procedural rules apply.24 For example, the
Fourth Circuit has held that the general federal statute of limitations applies.25 For a Lacey Act
violation, there is a five-year statute of limitations.26
Lacey Act Prohibitions Related to Plants
The Lacey Act definition of plant was expanded in 2008 to include any wild member of the plant
kingdom including roots, seeds, parts, or products, including trees.27 Prior to the 2008
Amendments, the Lacey Act applied only to those plants that were indigenous to the United
States and listed under one of the following: the Endangered Species Act (ESA); the Convention
on International Trade in Endangered Species of Wild Fauna and Flora (CITES); or a state law to
conserve species threatened with extinction.28 It did not expressly apply to plant products. The
revised definition has some exclusions, such as for scientific research and for plants that will be
transplanted.29 The Lacey Act prohibits four types of acts related to plants and requires
submission of a declaration for importing plants.
Violations of U.S. or Tribal Law
One prohibited activity is identical for plant violations as it is for wildlife violations. The Lacey
Act makes it illegal to “import, export, transport, sell, receive, acquire, or purchase” plants if the
plant was “taken, possessed, transported, or sold in violation of [U.S. or Indian tribal law].”30 As
for the wildlife violations, these cases tend to be fact-specific. For example, the saguaro cactus,
an icon of the American Southwest, is not protected under federal law but is under Arizona state
law. Accordingly, taking a saguaro cactus would not be a Lacey Act violation under Section
3372(a)(1),31 but would be under Section 3372(a)(2)(B), as discussed below.
24 See United States v. Thomas, 887 F.2d 1341, 1348-49 (9th Cir. 1989) (holding that the federal five-year statute of
limitations applied, not the state one-year statute of limitations).
25 United States v. Borden, 10 F.3d 1058, 1062 (4th Cir. 1993) (rejecting the argument that the state one-year statute of
limitations applied).
26 18 U.S.C. §3282(a). See Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 155 (1987) (holding
in a RICO case that “if no statute specifically defines a limitations period ... for a particular offense, a ‘catchall’ statute
operates to forbid prosecution, trial, or punishment ‘unless the indictment is found or the information is instituted
within five years next after such offense shall have been committed’”).
27 16 U.S.C. §3371(f).
28 Prior to enactment of the 2008 Amendments, the act defined plant as: “any wild member of the plant kingdom,
including roots, seeds, and other parts thereof (but excluding common food crops and cultivars) which is indigenous to
any State and which is either (A) listed on an appendix to the Convention on International Trade in Endangered Species
of Wild Fauna and Flora, or (B) listed pursuant to any State law that provides for the conservation of species threatened
with extinction.” 16 U.S.C. §3371(f) (2007).
29 An interim final regulatory definition of common food crops and cultivars was issued in July 2013, to take effect
September 9, 2013 (definitions of commercial scale and tree), and August 8, 2013 (all other definitions). 78 Fed. Reg.
40940 (July 9, 2013). A draft definition was issued on August 4, 2010. 75 Fed. Reg. 46859.
30 16 U.S.C. §3372(a)(1).
31 See United States v. Miller, 981 F.2d 439 (9th Cir. 1992) (case pre-dating the 2008 Amendments).
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Example 5 (Section 3372(a)(1))
A person in New York found sandplain gerardia on federal lands, a plant listed as endangered under the ESA. That
person kills the plant. The person has violated the ESA,32 but has not violated the Lacey Act because there has been
no act of import, export, transport, sale, receipt, acquisition, or purchase of the plant.
Example 6 (Section 3372(a)(1))
A person digs up a Kuenzler hedgehog cactus (an endangered species) from a state park, which violates state law, and
sells it to someone in another state. The buyer plants it in the perfect spot and it flourishes. Even though the plant
does not die, there is still a violation of the ESA, which prohibits digging up endangered plants in violation of state law,
as well as buying or selling them in interstate commerce.33 Therefore, both the sel er and the buyer have violated the
ESA. Because there was a sale, both have also violated the Lacey Act.
Violations of State or Foreign Law Protecting Plants
The 2008 Amendments added three other prohibited acts related to plants. The first directly
relates to laws that conserve plants. It prohibits importing, exporting, transporting, selling,
receiving, acquiring, or purchasing any plant in interstate or foreign commerce if that plant was
taken, possessed, transported, or sold in violation of state or foreign laws that
1. protect plants;
2. regulate the theft of plants;
3. regulate the taking of plants from a park, forest reserve, or other officially
protected area;
4. regulate the taking of plants from an officially designated area; or
5. regulate the taking of plants without, or contrary to, required authorization.34
Under this section, Section 3372(a)(2)(B)(i), it is illegal to take a plant, including a tree or a plant
product, in interstate commerce, if the state or foreign country protected the specific plant in
some way or protected the area from which the plant was taken, and that protection was violated.
Under the 2008 Amendments, taking a saguaro cactus, as discussed above, would be prosecuted
under Section 3372(a)(2)(B).
32 16 U.S.C. §1538(a)(2).
33 16 U.S.C. §1538(a)(2).
34 16 U.S.C. §3372(a)(2)(B).
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Example 7 (Section 3372(a)(2)(B)(i))
A person takes wild sage leaves from the roadside of Turkey, and then brings the leaves into the United States for the
person’s own use. Assume it is against Turkish law to pick sage leaves off roadside plants without authorization. A
Lacey Act violation occurred because the person imported sage leaves that violated a foreign law.
Example 8 (Section 3372(a)(2)(B)(i))
A person picks leaves of a plant that grows only in Turkey from the roadside and then brings the leaves into the
United States to sell. Assume this violates Turkish law. Assume it is against U.S. law to sell those leaves. Prior to
enactment of the 2008 Amendments there would be no Lacey Act violation, as the definition of plant at the time
required that the plant be indigenous to the United States (or listed under ESA, CITES, or state law) for the
prohibitions to apply, and underlying foreign law was not applicable in the pre-2008 Lacey Act.
Violations of State or Foreign Law Requiring Fees
The other two plant prohibitions are less directly linked to conservation. One prohibition under
the 2008 Amendments makes it illegal to import, export, transport, sell, receive, acquire, or
purchase a plant in interstate or foreign commerce that was “taken, possessed, transported, or sold
without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by
any law or regulation of any State or any foreign law.”35 Under this provision, the type of plant or
the location of the plant is not at issue. The predicate act is based on whether the plant was
harvested legally in relation to required fees. Prohibiting import, export, sales, and purchases of
timber based on payment of fees could be argued as having a conservation interest by limiting
illegally harvested trees, even if the illegality is related to paying fees, rather than the type or
locale of the trees. The theory that this prohibition supports conservation is that lawless
harvesting limits the economic advantage timber harvesting typically brings, such as funds for
reforestation or other protections.36 From an enforcement perspective, these violations can be
easier to prove because there will be paperwork showing whether the fees were paid (as opposed
to proof of illegal origin, for example), and the conservation benefits can more easily be realized.
Example 9 (Section 3372(a)(2)(B)(ii))
An American furniture manufacturer imports oak from Canada knowing that the price is good because the timber
company selling the wood “knows a guy” who can avoid paying fees for cutting the trees. The American furniture
company has violated the Lacey Act even though it was the timber company or “the guy” that did not pay the fees.
The act prohibits purchase of timber taken or sold without paying appropriate taxes and royalties. It does not have to
be the purchaser or importer that was required to pay the fees.
35 16 U.S.C. §3372(a)(2)(B)(ii).
36 See Cong. Rec. E533 (March 13, 2007) (Rep. Blumenauer: “By avoiding export duties, timber royalties and taxes on
their profits, companies operating unlawfully are robbing national governments of in excess of $15 billion annually on
public lands alone. This loss in revenue decreases governments’ ability to invest in the forestry sector to promote
sustainable forest management and conserve their natural forest resources”).
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Violations of State or Foreign Law Restricting Export
The last prohibition added by the 2008 Amendments makes it illegal to import, export, transport,
sell, receive, acquire, or purchase a plant in interstate or foreign commerce that was “taken,
possessed, transported, or sold in violation of any limitation under any law or regulation of any
State, or under any foreign law, governing the export or transshipment of plants.”37 Because there
is no specific requirement that the export law relate to conservation, some could contend this
provision is more likely to preserve trade advantages, rather than to protect ecosystems. But the
argument could be made that any restriction of trade in wood and wood products provides
conservation benefit by potentially limiting the amount of wood that is harvested and exported.
These export laws can serve as an enforcement “choke point” for that jurisdiction. Local officials
can moderate how the wood being processed was taken, thus serving a conservation purpose. For
example, by reviewing wood finishing, the foreign government has the opportunity to review
harvesting issues, such as location and types of wood. Another conservation benefit to enforcing
foreign export laws can be illustrated by the example of a country with a limited supply of a type
of wood but an unlimited demand for that wood worldwide. If processing were allowed to occur
outside of the country, that rare timber would be harvested without any limitation. By requiring
local processing, harvest is limited to the speed of domestic manufacturing, thus conserving the
timber. These provisions may also aid U.S. timber industry interests by restricting imported wood
and wood products.
Example 10 (Section 3372(a)(2)(B)(iii))
Under the law of a foreign country, only hand-made toothpicks may be exported. That same country has no
restrictions on harvesting a common tree. A U.S. importer imports machine-made toothpicks, made of that common
tree. The importer has violated the Lacey Act because it has imported plants (or plant products) in violation of a
foreign law governing export of plants.
Declaration
The 2008 Amendments also added a requirement for a declaration to be prepared by those
importing plants under the act. Under Section 3372(f), after a period of time following enactment
of the amendments (which occurred May 22, 2008), it became illegal to import a plant (or plant
product) without a declaration showing the following:
• the scientific name (including genus and species);
• the value;
• the quantity, including unit of measure; and
• the country from which the plant was taken.38
The declaration is submitted by the importer at the time of import. A copy of the form is
maintained in either electronic or paper form by APHIS and CBP.
37 16 U.S.C. §3372(a)(2)(B)(iii).
38 16 U.S.C. §3372(f)(1).
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The 2008 Amendments required the declaration as of December 15, 2008. However, in response
to concerns about the complexity of implementing the declaration requirement, especially for
importers of wood products, APHIS established a delayed enforcement schedule, setting
compliance stages for some more complicated products for April 1, 2010.39 Certain products,
such as wooden furniture, still are not on an enforcement schedule. (See the Appendix for the
Schedule.) While the declarations were required for all products as of December 15, 2008, APHIS
said it would not prosecute for failure to have a declaration until the dates indicated in the
implementation schedule.40
The 2008 Amendments also required APHIS to evaluate the declaration process within two years
of enactment.41 In February 2011, APHIS published a notice that it was initiating its review and
seeking comments on the implementation of declarations.42 A report must be submitted to
Congress within six months of completing the review.43 The report was submitted to Congress on
May 21, 2013.44
Lacey Act Penalties: Civil Violations, Felonies,
Misdemeanors, and Forfeiture
While Section 3372 states what actions are not legal, Section 3373 tells what actions may be
punished. The Lacey Act provides for civil and criminal penalties as well as forfeiture of the
protected item. Some conduct can be subject to either civil or criminal charges. The choice is left
to the prosecutors at the Department of Justice. These provisions took shape when the Lacey Act
was significantly amended in 1981.45
Civil Violations
For the violations described in the examples above (as opposed to marking or labeling violations)
the standard for a civil violation is whether the person engaged in that conduct “in the exercise of
due care should know that the fish or wildlife or plants were taken, possessed, transported, or sold
in violation of, or in a manner unlawful under, any underlying law, treaty, or regulation.”46 If so,
that person may be assessed “a civil penalty by the Secretary of not more than $10,000 for each
such violation.”47 The penalty is reduced if the value of the wildlife or plants is less than $350.48
39 74 Fed. Reg. 45415 (September 2, 2009).
40 74 Fed. Reg. at 45416 (September 2, 2009).
41 16 U.S.C. §3372(f)(4).
42 76 Fed. Reg. 10874 (February 28, 2011).
43 16 U.S.C. §3372(f)(5).
44 Personal communication with Abbey L. Fretz, APHIS Congressional Affairs, and the author, July 16, 2013.
45 P.L. 97-79.
46 16 U.S.C. §3373(a)(1). Pursuant to Debt Collection Improvement Act of 1996 (P.L. 104-134), this penalty may be
increased by the agency by publishing a notice in the Federal Register.
47 16 U.S.C. §3373(a)(1).
48 16 U.S.C. §3373(a)(1).
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The exercise of due care is a common legal phrase meaning the amount of attention a reasonable
person in the same circumstances would use. Under this standard, a first-time buyer of imported
animals, for example, is likely to be found to have less responsibility than an importer of those
animals. It does not excuse deliberate ignorance. Due care requires what is reasonable, such as
asking questions. The Senate report supporting the 1981 Amendments described the standard as
follows: “Due care simply requires that a person facing a particular set of circumstances
undertake[s] certain steps which a reasonable man would take to do his best to insure that he is
not violating the law.”49
According to that Senate report, the due care requirement was added to avoid overzealous
prosecution of unknowing violators: “The civil penalty provisions are included with the
understanding that they will not be administered to penalize innocent purchasers or consumers,
but rather with the clear intent that they will be applied fairly in an equitable and nonabusive
manner.”50
Misdemeanors
Similarly, the Lacey Act makes it a criminal misdemeanor for someone “who knowingly engages
in conduct prohibited by any provision of this chapter,”51 and “in the exercise of due care should
know that the fish or wildlife or plants were taken, possessed, transported, or sold in violation of,
or in a manner unlawful under, any underlying law, treaty or regulation.”52 The criminal
misdemeanor provision explicitly requires that the action that triggers the Lacey Act violation be
knowingly done. This means that the person must know he (or she) is doing the action, such as
transporting the item or buying a wildlife or plant product, not that he knows he is doing
something wrong.
For the predicate act, the standard for a misdemeanor, like the civil provision, is based on a due
care standard: it applies to those who “in the exercise of due care should know” that something
illegal was occurring. According to that same 1981 Senate report, this provision was included to
avoid leaving “too much potential for abuse and indiscriminate enforcement efforts.”53
Returning to Example Two, above, for illustration, proving the Lacey Act portion of the illegal
feather purchase would require the buyer to know only that he was buying a wildlife or plant
product, not that he knew he was buying illegal hummingbird feathers. But the predicate violation
must also be proved—a court must find that the buyer in the exercise of due care should know
that the product was somehow illegal.
49 S.Rept. 97-123; 1981 U.S.C.C.A.N. 1748, 1757-58.
50 S.Rept. 97-123; 1981 U.S.C.C.A.N. 1748, 1757.
51 16 U.S.C. §3373(d)(2)—but not marking or labeling offenses.
52 16 U.S.C. §3373(d)(2).
53 S.Rept. 97-123; 1981 U.S.C.C.A.N. 1748, 1750.
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Example 2A—Expanded to Consider Misdemeanor Culpability
A person buys a bag of feathers that includes some hummingbird feathers mixed in with legal goose down. It was the
same price as every other bag of down. The person knowingly bought feathers, but in the exercise of due care he
would have no knowledge that the feathers he bought were illegal. It is unlikely that a court would find the person by
exercising due care should have known he was buying feathers that were taken in violation of federal law.
Example 2B—Expanded to Consider Misdemeanor Culpability
A person buys three tiny green feathers for the same price as a whole bag of down. This person also knowingly
committed the act that triggers the Lacey Act by buying the feathers. It is likely that a court would find that this
person when buying those tiny feathers did not exercise due care to discover whether a law had been violated. Two
factors a court might expect a reasonable person to consider under the circumstances are that the feathers were
unusual and that they were more expensive. The failure to ask reasonable questions could support a finding that the
second buyer engaged in conduct prohibited by the act (buying feathers) and that any due care would have revealed
that the feathers were taken in violation of law, establishing a Lacey Act violation.
A misdemeanor may be punished by up to one year in jail, in addition to or instead of the fine.
Despite the Lacey Act authorizing a maximum $10,000 fine for the misdemeanor, under the
Criminal Fines Improvement Act, the maximum criminal penalty is adjusted to $100,000 for an
individual, and $200,000 for an organization.54
Felonies
The felony provision has a higher standard of culpability. Like the misdemeanor provision, it also
requires the actor to know he or she was committing the action that triggers the Lacey Act
violation—importing, exporting, engaging in the conduct to sell or purchase or attempt to sell or
purchase an item taken in violation of another law—but it also requires that the actor know “that
the fish or wildlife or plants were taken, possessed, transported, or sold in violation of, or in a
manner unlawful under, any underlying law, treaty or regulation.”55 To be a felony there must be
knowledge and one of two things: import or export;56 or commercial conduct and a value of over
$350.57 These requirements were included to avoid imposing big penalties on smaller offenders,
according to the 1981 Senate report.58 Additionally, that report indicates congressional intent to
allow innocent violators to escape criminal prosecution, “the act’s criminal culpability
requirement assures that innocent violators of the act will not be subject to criminal penalties.”59
Punishment for committing a felony includes incarceration of no more than five years, a fine of
$250,000 for individuals and $500,000 for organizations, or both.60
54 The Criminal Fines Improvement Act of 1987 enhances criminal fines for those laws whose criminal fines have not
been adjusted since 1987. The Criminal Fines Improvement Act applies two steps: first, classification of the offense
based on the length of the incarceration provided by the underlying act (18 U.S.C. §3559); and second, calculation of
the fine based on the offense classification (18 U.S.C. §3571).
55 16 U.S.C. §3373(d)(1).
56 16 U.S.C. §3373(d)(1)(A).
57 16 U.S.C. §3373(d)(1)(B).
58 S.Rept. 97-123; 1981 U.S.C.C.A.N. 1748, 1758.
59 S.Rept. 97-123; 1981 U.S.C.C.A.N. 1748, 1759.
60 16 U.S.C. §3373(d)(1). The Lacey Act indicates a maximum fine of $20,000. The fines in the text are based on the
(continued...)
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To illustrate the felony provisions, consider Example 4, above, in which an Illinois buyer
purchased a deer killed in violation of Wisconsin law. The court must find the buyer knew two
elements: (1) that he was buying something; and (2) that the venison he was buying was illegal in
some way.
Example 4A—Expanded to Consider Felony Culpability
The buyer purchased the venison at a farmers’ market in November (a time when most, if not all states, allow deer
hunting). He paid the going rate for the meat. Under this example, a court likely would find that the buyer had not
criminal y violated the Lacey Act. Everything was consistent with a bona fide purchase. A reasonable person would
not know in these circumstances that the venison was tainted, nor in the exercise of due care would discover the
underlying violation of law.
Example 4B—Expanded to Consider Felony Liability
The buyer, an avid deer hunter, purchased the fresh venison at midnight in the parking lot of a petting zoo where
remains of the deer could be seen in a pile. The price was very cheap and the seller was wearing a mask. It seems
likely a court would find the buyer had criminally violated the Lacey Act. The circumstances of the sale/purchase
would cause a reasonable person to know something was wrong.
Forfeiture
The Lacey Act also authorizes forfeiture of the illegal items. Forfeiture is where the government
confiscates an item involved in a crime.61 As the Ninth Circuit found in United States v. 144,744
Pounds of Blue King Crab, under the law, the illegally taken or imported item is considered
contraband, even if possessing it would not otherwise be illegal.62 If the forfeiture action is civil,
the court does not have to find a person liable for wrongdoing. For example, in the case discussed
earlier of the Urial (the big horn sheep from Pakistan), the suit was not against the importer for
violating the Lacey Act, but was a case where the government seized the hide and horns from the
importer.63 The prosecution was against the contraband itself. Cases in which civil forfeiture is
the only issue have case names where the item is named as the defendant. For criminal forfeiture
actions, a successful suit requires conviction of the person who owned the contraband.
Forfeiture can serve two purposes: remedial or punitive. According to the Supreme Court, the
remedial purposes include preventing forbidden merchandise from circulating, and reimbursing
the government for investigation and enforcement expenses.64 The punitive goals of forfeiture
apply to criminal proceedings.
The Lacey Act applies civil forfeiture proceedings to “all fish or wildlife or plants imported,
exported, transported, sold, received, acquired, or purchased contrary to [Section 3372 of the act]
(...continued)
enhanced amounts under the Criminal Fines Improvement Act.
61 For a broader analysis of forfeiture, see CRS Report 97-139, Crime and Forfeiture, by Charles Doyle.
62 United States v. 144,774 Pounds of Blue King Crab, 410 F.3d 1131 (9th Cir. 2005) (holding that crab taken illegally
was property that was illegal to possess and therefore fit the definition of contraband).
63 United States v. One Afghan Urial Ovis Orientalis Blanfordi Fully Mounted Sheep, 964 F.2d 474 (5th Cir. 1992).
64 One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237 (1972).
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... notwithstanding any culpability requirements for civil penalty assessment or criminal
prosecution [under Section 3373 of the act].”65 In situations where the wildlife or plants were part
of a “criminal violation of this Act for which a felony conviction is obtained,” the act allows civil
forfeiture of the “vessels, vehicles, aircraft, and other equipment” used in committing the crime.66
Prior to the 2008 Amendments, courts held that there was no innocent owner defense to forfeiture
under the Lacey Act. These decisions are based on the act’s language that that “all fish or wildlife
or plants [that violate Section 3372] shall be subject to forfeiture ...”67 According to the 1981
Senate report, forfeiture was to occur regardless of culpability: “The strict liability forfeiture
section of these amendments would allow the protection of various species from harmful illegal
trade by withdrawing illegal shipments from the marketplace even when the violation itself is
inadvertent.”68
The only defense described in that report was where the merchandise was without taint and the
import ran afoul of the law only in a “minor, technical” manner.69
The Fifth Circuit pointed to that legislative background in finding that “the legislative history
establishes that the forfeiture statute provides for strict liability, thereby eliminating any ‘innocent
owner’ defense.”70 A federal court in Florida held that the Lacey Act does not provide for an
innocent owner defense.71 As referenced above, in United States v. 144,744 Pounds of Blue King
Crab, the Ninth Circuit has held that Lacey Act goods are contraband.72
The 2008 Amendments added the statement that civil forfeiture was to be “in accordance with the
procedure established under [18 U.S.C. §§981-986].”73 Under this statute, the Civil Asset
Forfeiture Reform Act (CAFRA),74 the government has the burden of proof by a preponderance
of evidence.75 The person owning the forfeited goods may also seek immediate release of the
property pending trial.76
CAFRA allows a defense to a civil forfeiture for innocent owners, bona fide purchasers, and
heirs.77 However, under CAFRA, the innocent owner defense cannot be used for contraband. The
exclusion states: “no person may assert an ownership interest under this subsection in contraband
or other property that it is illegal to possess.”78 As discussed above, the Ninth Circuit found that
65 16 U.S.C. §3374(a)(1).
66 16 U.S.C. §3374(a)(2).
67 16 U.S.C. §3374(a)(1) (emphasis added).
68 S.Rept. 97-123; 1981 U.S.C.C.A.N. 1748, 1760.
69 S.Rept. 97-123; 1981 U.S.C.C.A.N. 1748, 1760.
70 United States v. One Afghan Urial Ovis Orientalis Blanfordi Fully Mounted Sheep, 964 F.2d 474, 476 (5th Cir.
1992). See also United States v. 2,507 Live Canary Winged Parakeets, 689 F. Supp. 1106, 1117 (S.D. Fla. 1988).
71 United States v. Proceeds from Sale of Approximately 15,538 Panulirus Argus Lobster Tails, 834 F. Supp. 385 (S.D.
Fla. 1993).
72 United States v. 144,774 Pounds of Blue King Crab, 410 F.3d 1131 (9th Cir. 2005).
73 16 U.S.C. §3374(d).
74 P.L. 106-185.
75 18 U.S.C. §983(c)
76 18 U.S.C. §983(f).
77 18 U.S.C. §983(d).
78 18 U.S.C. §983(d)(4).
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goods taken in violation of the Lacey Act are contraband. Additionally, the 1981 Senate report
described the goods in the same way: “The act provides for forfeiture of the fish, wildlife and
plants on a strict liability basis because the merchandise is, in effect, contraband.”79
A statement in the House report on the 2008 Amendments further references the Blue King Crab
decision to note that incorporating CAFRA by reference may not provide a defense to the strict
liability forfeiture provisions under the Lacey Act because of the ruling that goods are contraband
under the act.80
However, it is possible to have the goods returned while the matter is still administrative, before it
is referred to court. This is known as remission. Department of the Interior regulations that apply
to forfeitures allow the possibility of remission in administrative forfeitures in rare circumstances.
When FWS notifies a person that goods are forfeited, that person may file a petition for remission
rather than a claim, which would refer the matter to court. Under 50 C.F.R. §12.24(f), the
regulations provide that “If the Solicitor finds the existence of such mitigation circumstances,”
goods may be remitted. The only published decision available regarding forfeiture of plant
products following the 2008 Amendments considered such a petition before rejecting it.81
According to that administrative case, the Solicitor considered “whether the facts demonstrate a
person’s honest and good faith intent to comply with the law, their diligence and efforts to
comply, and whether the facts tend to show a lack of negligence or moral culpability for whatever
failure or mistake is involved in the non-compliance ...”82 This administrative forfeiture process
appears consistent with the legislative discussion of allowing release of untainted goods related to
innocent trade violations.
Example 11—Forfeiture of Contraband
While visiting Nicaragua, a couple buys a table made of a rare wood protected under U.S. law. When they enter the
United States they lie on the customs declaration, saying the table was a different, non-protected species. They have
violated the Lacey Act under Section 3372(a)(1), by transporting an item in violation of U.S. law by lying on a customs
declaration. In addition to any civil or criminal prosecution against the couple, the table is contraband and may be
seized by the government.
Gibson Guitar and the 2008 Amendments
In August 2011, FWS executed search warrants at Gibson Guitar Corp. premises and seized wood
imported from India. Reportedly, the FWS agents were armed. However, no charges were brought
against Gibson or its officers. According to a statement from Gibson, the wood was certified by
the Forest Stewardship Council83 as sustainably harvested and was seized by FWS because it was
79 S.Rept. 97-123; 1981 U.S.C.C.A.N. 1748, 1760.
80 H.Rept. 110-882.
81 U.S. Department of the Interior v. Three Pallets of Tropical Hardwood (Crouch), INV. No. 2009403072, at 3 (Office
of the DOI Solicitor June 22, 2010).
82 U.S. Department of the Interior v. Three Pallets of Tropical Hardwood (Crouch), INV. No. 2009403072, at 4 (Office
of the DOI Solicitor June 22, 2010). The Solicitor found no mitigating circumstances “[the importer] did not do all he
could within his power to comply with regulations and ensure that the shipment was authorized by an export permit
that properly documented the required information.” Id. at 6.
83 The Forest Stewardship Council (FSC) is a non-profit group that reviews forest management and production
practices. It describes its certification as providing a basis “for socially and environmentally responsible purchasing
(continued...)
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“not finished by Indian workers.”84 FWS and the Department of Justice (DOJ) did not comment
on the case, although the government settled this and other charges against Gibson, with Gibson
paying a fine, and the government agreeing that India laws regarding exporting ebony and
rosewood fingerboard blanks were vague.85 The wood was returned to Gibson.
Section 3375(b) of the Lacey Act authorizes federal agents to carry firearms when enforcing the
act. It also allows execution of search and arrest warrants, including searching any vessels,
packages, containers, documents, or permits related to the action.
Background
To make sense of the statements in the affidavit prepared to obtain the search warrants, it helps to
have some background of relevant trade terminology. Countries generally use the International
Harmonized Commodity Description and Coding System (HS) to identify items being shipped.
The United States implements the HS in the Harmonized Tariff Schedule of the United States
(HTS). Therefore, where the shipment is of foreign origin, it will be identified with HS. Whether
HS or HTS, the numbers correlate to the same items. The APHIS chart in the Appendix uses
HTS numbers to identify what wood products required a declaration by what date.
For the purposes of the Gibson investigation, two HS codes are relevant. The first is HS 4407—
wood split lengthwise that is greater than 6 mm thick. The second is HS 4408—wood veneers,
less than 6 mm thick. According to a U.S. customs ruling in 1993, fingerboards for musical
instruments, such as guitars and violins, are covered under HS 4407, meaning they are greater
than 6 mm thick.86 Veneer is defined by Webster’s New Collegiate Dictionary as “a thin sheet of a
material: a layer of wood of superior value or excellent grain to be glued to an inferior wood.”
According to the affidavit prepared to obtain the Gibson search warrants, “India prohibits the
export of products classified under HS Code 4407 for all plant species harvested in India, without
exception.”87 Therefore, any wood exported from India under HS 4407 violates Indian law. The
affidavit also indicates that exporting wood veneers from India under HS 4408 is legal.88
What the Affidavit for the Gibson Warrants States
In order to obtain the search warrants, a Special Agent of FWS completed an affidavit outlining
the basis for the search. Four search warrants were ultimately obtained to search Gibson’s
(...continued)
decisions.” See FSC website, http://www.fsc.org/about-fsc.html.
84 Gibson Guitar Corp. Responds to Federal Raid (August 25, 2011), available at http://www.gibson.com/en-us/
Lifestyle/News/gibson-0825-2011.
85 Criminal Enforcement Agreement between Department of Justice and Gibson Guitar Corp. (July 27, 2012),
http://www.fws.gov/home/feature/2012/USvGibsonGuitarAgreement.pdf.
86 Tariff classification ruling NY 881630 (January 26, 1993) (pertaining to sawn Indian rosewood (Dalbergia latifolia)
and sawn Indian ebony (Diospyros ebenum)).
87 John M. Rayfield, FWS, Affidavit in Support of Search Warrant # 11-MJ-1067 A, B, C, D, p. 4 (August 18, 2011)
(hereinafter Affidavit). See also Affidavit, p. 8 (“Further research of ... all other published laws and regulations of the
Government of India ... revealed no exceptions to this export prohibition”).
88 Affidavit at 7.
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manufacturing, rough mill, and corporate locations, as well as to search a delivery service. Two
shipments formed the basis for the Affidavit: a shipment of ebony from India on June 27, 2011;
and a shipment of rosewood and ebony from India on June 20, 2011, which was investigated after
the June 27 shipment.89
Shipment of June 27, 2011
According to the Affidavit, a CPB official at the Dallas airport suspected a shipment of Indian
ebony on June 27, 2011, violated the Lacey Act and referred the shipment to an FWS inspector.90
The FWS inspector, CBP officer, and the APHIS specialist physically identified the shipment as
containing sawn Indian ebony of a thickness of 10 mm described under HS 4407.91 Multiple
pieces of documentation accompanied this shipment. (See Table 1.) The information on the
documents was not consistent, identifying different HS codes (for veneer, for fingerboards, for
completed musical instrument parts); and different importers (one in Germany, one in Canada,
and Gibson).
Table 1. Documentation Accompanying Shipment of June 27, 2011
Contents as
Ultimate Receiver
Other
Document
Declared on Form
HS Number
of Goods
Information
Air Way Bill 589
Theodor
Nagel,
Contact Luthier
2025 5804
Gmbh (of Germany)
Mercantile upon
import. Marked for
direct transport to
Nashville, TN
Customs and Border
Veneer Sheets less
HS 4408.90.0195
Luthier Mercantile
Protection Form
than 6 mm
(of Canada)
3461 (U.S. Customs
entry declaration)
Indian export
Indian ebony
HS 9209.92.00
declaration (June 10,
(finished parts of
2011)
musical instruments)
Certificate of Origin
Indian ebony finger
Nashville
Airport
from India
boards, 10 mm thick
Lacey Act
Ebony fingerboards
HS 4407.99.96
Gibson Guitar Corp.
Document submitted
Declaration (USDA
for guitars: Diospyros
after shipment was
Form PPQ) (June 17,
ebenum, harvested in
referred to FWS for
2011)
India
investigation on June
27, 2011
Source: Congressional Research Service, based on information from John M. Rayfield, FWS, Affidavit in Support
of Search Warrant # 11-MJ-1067 A, B, C, D, pp. 9-11 (August 18, 2011).
Note: Blanks in the table indicate that information was not available, but do not suggest that information was
required.
89 Neither Indian rosewood (Dalbergia latifolia) nor ebony (Diospyros ebenum) appears to be species protected under
the Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES) or other American law
at the time of the violation. Ebony from Madagascar, however, is a CITES Appendix II species as of June 12, 2013.
90 Affidavit at 8.
91 Affidavit at 8, 11.
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The only form that identified the contents as being under HS 4407 and the ultimate receiver being
Gibson, according to the information in the Affidavit, was the Lacey Act declaration submitted by
Gibson. The declaration was submitted after the investigation had started. That declaration
indicated that the shipment for Gibson contained ebony fingerboards under HS 4407. The
problem is that India prohibits export of wood under HS 4407, according to the Affidavit. If the
Gibson declaration is true, India export law has been violated. If India export law has been
violated, it is possible that the predicate violation of the Lacey Act has been triggered and that a
violation of Section 3372(a)(2)(B)(iii) has occurred. As discussed above, that section states that a
Lacey Act violation has occurred if an item has been imported, exported, transported, sold,
received, acquired, or purchased in interstate or foreign commerce and that item was taken,
possessed, transported, or sold in violation of a state or foreign law that governs the export or
transshipment of plants. There are no statements in the Affidavit regarding an Indian law
protecting ebony or requiring royalties or fees, and thus it appears that FWS did not make a case
that there was a violation of either Section 3372(a)(2)(B)(i)—pertaining to foreign laws
protecting plants; or Section 3372(a)(2)(B)(ii)—pertaining to foreign laws requiring payment of
royalties, taxes, or stumpage fees. Any certification by the Forest Stewardship Council of the
timber product would seem irrelevant, as forestry practices do not appear to be the issue in this
case.
Shipment of June 20, 2011
The Affidavit also recounts facts relating to an earlier shipment that was discovered after the
shipment of June 27, 2011. Again, CPB alerted FWS to a possible Lacey Act violation, in this
case Indian rosewood and Indian ebony imported on June 20, 2011.92 The details about this
shipment’s documentation are not as clear as for the June 27 shipment. However, the Affidavit
indicates that the U.S. customs import declaration identifies Luthier Mercantile as the ultimate
receiver of the goods, but that an email from Luthier Mercantile identified Gibson Guitar as the
importer.93 The Affidavit indicates that the shipment was “sawn Indian ebony and sawn Indian
rosewood imported under HS code 4407.”94
While Indian rosewood does not appear to be a protected species under CITES or the ESA, other
types of rosewood do have import limitations. CITES lists Brazilian rosewood (Dalbergia nigra),
Honduran rosewood (Dalbergia stevensonii), and Nicaraguan rosewood (Dalbergia retusa), thus
restricting their trade. No similar restrictions of ebony were found at the time of the Gibson
charges, although since then, ebony from Madagascar became listed as an Appendix II species.
Other Shipments to Gibson
The Affidavit indicates that prior to these two shipments, Gibson has submitted Lacey Act
declarations for wood products from India 11 times since August 2010.95 According to the
Affidavit, the CPB database shows 11 shipments of rosewood and/or ebony from India to Gibson
92 Affidavit at 14 (stating the shipment was discovered on July 28, 2011).
93 Affidavit at 14.
94 Affidavit at 14.
95 Affidavit at 11-12.
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under HS 4407.96 FWS brought forfeiture actions for the ebony Gibson imported from
Madagascar in 2008 and 2009,97 and from India in June 2011.98
Were Gibson to be charged under Section 3372(a)(B)(iii) for any of these shipments, which seems
unlikely in light of the settlement agreement discussed below, rather than DOJ proceeding with a
civil forfeiture action only,99 DOJ would need to show that Gibson knew that the shipment
violated a law related to export. It would not have to show that Gibson knew the specific Indian
or Malagasy law, only that it was doing something illegal.100 According to the Ninth Circuit, the
Lacey Act does not require “that the violator know all the details of the statutes and regulations
that make the conduct unlawful. It suffices that he knows, not only that he is importing or
exporting [the plant or animal], but also that the [plants or animals] are tainted by a violation of
some law.”101 Under such circumstances, a court might consider Gibson’s business importing
wood;102 that it had been charged with an import violation before;103 and/or that the
documentation was inconsistent (perhaps to conceal the violation) as evidence that Gibson knew
the import was against the law.
Settlement
In July 2012, Gibson reached a settlement with DOJ.104 The settlement addresses charges and
forfeitures from 2008 and 2009 imports, as well as the forfeiture from the 2011 investigation. In
exchange for not being prosecuted, Gibson agreed to pay a $300,000 penalty, donate $50,000 to
the National Fish and Wildlife Foundation, and withdraw its claims to recover the forfeited wood
from Madagascar, reportedly valued at $261,884.105 The contested wood from India was returned
to Gibson.
In the agreement, Gibson acknowledged that it imported wood from Madagascar in 2008 and
2009 after learning that it was illegal. The United States acknowledged that the India tariff rules
that were the basis for the 2011 investigation were inconsistent, and agreed not to enforce those
rules until India clarified them. Gibson also agreed to enter a Lacey Act compliance program to
96 Affidavit at 12-13.
97 United States v. Ebony Wood in Various Forms, No. 3:10-cv-747 (M.D. Tenn. administratively closed September
28, 2011). See Heath E. Combs, Gibson Raid Raises Attention on Lacey Act Enforcement, Furniture Today (September
6, 2011), available at http://www.furnituretoday.com/article/print/542690-
Gibson_raid_raises_attention_on_Lacey_Act_enforcement.php.
98 United States v. 25 Bundles of Indian Ebony Wood, No. 3:11-cv-00913 (M.D. Tenn.).
99 Forfeiture action has been initiated. United States v. Indian Ebony and Rosewood, No. 3:12-mc-00014 (M.D. Tenn.
2011) (complaint not yet filed).
100 See, e.g., United States v. Santillan, 243 F.3d 1125 (9th Cir. 2001) (holding that culpability was demonstrated by the
fact that he lied about the parrots he was hiding in his car while crossing into the United States from Mexico).
101 United States v. Santillan, 243 F.3d 1125, 1129 (9th Cir. 2001).
102 See United States v. Three Pallets of Tropical Hardwood (Crouch), INV. No. 2009403072, at 5 (Office of the DOI
Solicitor June 22, 2010) (rejecting a defense that the declaration requirement was new, holding that “a company that
specializes in international shipments should be well versed in the applicable laws that govern such transactions”).
103 See United States v. Kuipers, 49 F.3d 1254 (7th Cir. 1995) (allowing DOJ to introduce other crimes in a Lacey Act
case to show defendant knew he was violating the law).
104 Criminal Enforcement Agreement between Department of Justice and Gibson Guitar Corp. (July 27, 2012),
http://www.fws.gov/home/feature/2012/USvGibsonGuitarAgreement.pdf.
105 Department of Justice Press Release, Gibson Guitar Corp. Agrees to Resolve Investigation into Lacey Act Violations
(August 6, 2012), available at http://www.justice.gov/opa/pr/2012/August/12-enrd-976.html.
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improve its due care standards for determining wood origins. For example, it agreed to contact
foreign governments directly to establish any export restrictions when using a new supplier or
source country. It must report its compliance efforts to DOJ two times in the next 18 months. If
Gibson complies with these terms, the United States has agreed not to pursue charges.
Legislation
Legislation introduced in the 113th Congress would alter many aspects of the act. Two bills would
excuse unknowing shipment of species in certain circumstances. One of those bills, H.R. 3390,
would restrict enforcement of the act (and the injurious species provisions found in 18 U.S.C.
§42) to exclude public water systems or related conveyances. This would address concerns that
interstate water distribution facilities could violate the Lacey Act by transporting species such as
the zebra mussel. Similarly, H.R. 3105 would excuse commercial fish farmers from prosecution if
a shipment “accidentally” contained a barred species, likely Asian carp.
H.R. 3280 would function as a grandfathering provision for the 2008 plant amendments. Under
that provision, plant imports that occurred prior to May 22, 2008, would not be covered by the
act; neither would products containing plants that were assembled prior to May 22, 2008.
H.R. 3324 would alter the plant declaration requirements under Section 3372(f) by requiring
importers to possess the declaration, rather than filing it with the government, and to report the
value of the plant products, rather than the import as a whole.
H.R. 2158 would exempt the export of banned pythons from prosecution under the Lacey Act
under certain conditions.
The 112th Congress also considered legislation to alter the Lacey Act, but in different ways. Three
bills of the 112th Congress proposed limiting Lacey Act enforcement related to imports. H.R.
3210 would have restricted how the Lacey Act applied to wood imported prior to 2008 and
composite wood products, and would have allowed an innocent owner defense to forfeiture
actions. H.R. 4171/S. 2062 would have eliminated any reference to violations of foreign laws and
ended criminal prosecutions for violating the Lacey Act.
Congressional Research Service
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The Lacey Act: Protecting the Environment by Restricting Trade
Appendix. Declarations Enforcement Chart
Figure A-1. Phase-In Schedule of Enforcement of the Declaration Requirement for
Goods of, or Containing, Plants or Plant Products
Source: Congressional Research Service based on data from charts published by APHIS in 74 Fed. Reg. 45415
(September 2, 2009) and 74 Fed. Reg. 5911 (February 3, 2009).
Note: According to APHIS in both of the Federal Register notices referenced above, “the failure to submit a
declaration wil not be prosecuted, and customs clearance will not be denied for lack of a declaration until after
the phase-in date above.” According to APHIS, furniture other than seats with wooden frames under Ch. 94,
Furniture, etc., is removed from the enforcement schedule.
Author Contact Information
Kristina Alexander
Legislative Attorney
kalexander@crs.loc.gov, 7-8597
Congressional Research Service
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