Lacey – and More – for Luthiers

1. Lacey – and More –for Luthiers A NAMM Public Affairs Webinar Info: MaryL@namm.org Call-in toll-free number (US/Canada): 1-877-669-3239 Meeting Number: 809 495 947 Meeting Password: Lacey

2. Participants • James M. Goldberg, NAMM Government Affairs • Mary Luehrsen, NAMM Public Affairs

3. What is the Lacey Act? • 100-year-old law originally designed to protect against illegal taking of wildlife • Amended in 2008 (as part of the omnibus farm bill) to cover plant material, including wood

4. The 2008 Amendments • Unlawful to import, export, transport, sell, receive, acquire or purchase any plant (including wood) that was taken in violation of law • Must file declaration (document) for imports containing scientific name of plant material, country of origin, value of the product and quantity of the plant

5. Who Enforces Lacey? • Many government agencies involved, including CBP, FWS, DoJ and USDA’s APHIS (the lead agency) • Good source for all things Lacey: • www.aphis.usda.gov/plant_health/lacey_act/index.shtml

6. Tell Me in Plain English • Make sure imports were obtained legally • Make sure import documentation and records are true and accurate • Make sure an import is properly declared

7. What About the Import Declaration? • Effective April 1, 2010, applicable to HTS categories 9201 and 9202 (pianos and other string instruments) • Other instrument categories may come later

8. Plant and Plant Product Declaration Form (PPQ Form 505) • Estimated date of arrival • Entry number, container number, bill of lading • Importer name/address/ • Consignee name/address • Description of Merchandise (w/HTS number)

9. More PPQ Form 505 • Article or component • Plant scientific name (genus and species) • Country of harvest • Quantity of plant material • Unit of measure • % recycled material • Signature under penalty of perjury

10. The Lacey Act “Adopts” Foreign LawsFor Products in Trade in the U.S. • Foreign laws that act as “underlying” violations • Laws that generally “protects plants,” • Laws that regulate: • (I) the theft of plants; • (II) the taking of plants from a park, forest reserve, or other officially protected area; • (III) the taking of plants from an officially designated area; or • (IV) the taking of plants without, or contrary to, required authorization • Failure to pay appropriate royalties, taxes, or stumpage fees • Laws governing the export or transshipment of plants. • Covers many of types of laws • Illegal harvesting of timber in national parks • Forgery of shipping documents • Failure to pay taxes • Transporting of timber at night in violation of a curfew designed to combat illegal timber trafficking

11. Penalties Under Lacey Act • Forfeiture • Strict liability • Forfeiture possible even if no knowledge of underlying violation (e.g., that the timber was harvested illegally). • Likely no “innocent owner defense” for goods whose possession is illegal under the Lacey Act • Vessels, vehicles, aircraft or other equipment used in the commission of a Lacey Act felony are also subject to forfeiture after a felony conviction • Civil administrative penalties • If defendant actually knew, or in exercise of due care should have known, of violation of an underlying law, potential civil penalty up to $10,000 per violation • Government can argue lack of “due care” by showing that the respondent is in the business

12. Penalties Under Lacey Act • Fines and imprisonment • If, in exercise of due care, should have known of the underlying violation – misdemeanor prosecution • Penalties of up to $100,000 fine ($200,000 for organizations) and/or • Up to one year imprisonment • Knowingly engages in illegal trafficking, while knowing of violation of underlying law – felony prosecution • Penalties of up to $250,000 fine ($500,000 for organizations) and/or • Up to 5 years imprisonment

13. Practical Advice • Do not confuse declaration requirements with legality issues • Legality requirements applies and enforcement is possible regardless of whether declaration is applicable • Understand your sourcing • Beware of deals that are “too good to be true”

14. Lacey Does Not • Does not apply to personal imports • Does not apply to exports • Does not require permits for intrastate (within U.S.) shipments • Does not apply to specific woods

15. Lacey Act Problem Areas • Difficulty in identifying a single species for many products • Inability to identify any species for some products (e.g., composites, paper) • Need for de minimis provision • Applicability to all products, regardless of age (e.g., vintage guitars, antique instruments)

16. What is NAMM Doing? • Working with industry coalition to identify problem areas and suggest “fixes” • Working with governmental interagency task force • Upcoming report to public and Congress presents opportunity to advocate legislative fixes

17. What Other Laws Apply? • CITES (Convention on International Trade in Endangered Species) • Bans trade in certain listed species, e.g., Brazilian Rosewood • Can still export pre-1992 rosewood products with permit from FWS

18. What Other Laws Apply? • Endangered Species Act • More stringent than CITES • If species is listed (e.g., ivory, certain abalone) a permit is required but unlikely to be issued unless product is more than 100 years old • Applies to trade within U.S.

19. What Other Laws Apply? • To import/export any product containing fish or wildlife product (e.g., shell), must file Declaration • FWS Form 30177 • Found at FWS law enforcement web

20. Questions? • For further information contact MaryL@namm.org