rexhunt - Posted - 09/07/2011:  10:26:36

I don't think anyone is "bashing Gibson".  The only "facts" so far have come from Gibson, which if true do not speak well of the government, but we have not yet heard the "other side of the story" as Paul Harvey used to say.  Far from trying to rush to judgment, we should wait till BOTH SIDES OF THE STORY  have come out.

Rex

Duke of Pearl - Posted - 09/07/2011:  10:47:40

There are facts available but Gibson's not the one putting them out and neither are most media reports.  They're not being "singled out " at all, and most certainly not for partisan politics -- they're in the cross-hairs because of the Madagascar woods in the November, 2009, raid, which involve logging in endangered national forests.  The same wood source was offered to the CEO's of all the other large guitar companies who flatly rejected getting involved, but Gibson decided to go for it anyway and got themselves in trouble.  The latest Indian woods aren't endangered and come from legal sustainable sources, but because of several paperwork mistakes on the part of importer/consignee LMI, it looked to Gibson's investigators that they had new violations on the company.

Duke of Pearl - Posted - 09/07/2011:  13:57:18

For what it’s worth, Indian wood dealers are organizing and involving their government: articles.economictimes.indiati...kiewicz/2

 

sugarinthegourd - Posted - 09/07/2011:  13:59:59

Here's a very reasonable and fact-based article from a furniture industry journal.

quote:

---

American Home Furnishings Alliance Vice President Bill Perdue said the Lacey Act is something furniture importers should be worried about and that the organization has been working on helping companies learn compliance, even with the current limited scope of the rule. "We've told our guys almost ad nauseam that if you are importing lumber into the United States you've got to comply with the Lacey Act. Really it's not where you manufacture the goods, it's where the tree was harvested," Perdue said.

---

quote:

---

The shipment in question allegedly was exported under a false HTS code, consigned to Gibson Guitar.

"If it's found that Gibson broke the law, then they broke the law. Lacey exists to help to support developing nations in their efforts to protect their own resources. If India made a law that bans export of a certain type of wood in a certain form, then we as an exporting country should respect that law and that's why we have the Lacey Act," Middleton.

Middleton also took issue with claims that the Gibson raid was an attack on U.S. workers.

"Why can't Gibson use American hardwoods and create their American manufactured product with trees that grow here in the United States?" she said.

Compliance Specialists' Krause said that the U.S. government likely has a higher expectation of a company like Gibson that is a more experienced importer of wood than small craftsmen.

"If you're going to set a precedent for the rest of the country you'd want to cover as many bases as possible, and that's why I think Gibson is being prosecuted," Krause said.

Krause suggested that the Lacey Act's wood provisions currently don't give the Department of Justice much room to use discretion in judging the seriousness of infractions like typical law enforcement agencies.

While some countries may not enforce laws regarding wood importing because they don't have sophisticated tracking systems, the Lacey Act requires federal officials to enforce the law and take action.

"There's no provision that goes, ‘Find out if this law is important to the country. And then if it is important enforce it and if it's not important don't enforce it,'" Krause said.

Krause added that the Forest Stewardship Council defense posed by Gibson may not do it much good.

"We tell people that FSC is no guarantee that you'll be in compliance with the Lacey Act, as we see in this case," Krause said.

"There is no way to be certified as Lacey Act compliant. There are no hoops that you jump through and that gold seal that you get to say that your practices are Lacey Act compliant. The burden is really on the importer, to document it well and to know exactly what species they're importing," Krause said.

---

Edited by - sugarinthegourd on 09/07/2011 14:01:34

banjofly - Posted - 09/07/2011:  14:44:33

All this will eventually lead to many empty stomachs in the US. a little here and a little there. The people in this country had better wake up before it's too late. I would never have dreamed how over governed our country has come to be. I know a little boy who is performing community service because he was caught with tobacco at school. Banjos will soon be to expensive for most americans to own..

Duke of Pearl - Posted - 09/07/2011:  14:46:06

It contains valid general Lacey Act info, but as far as Gibson is concerned gets all the "facts" wrong (in fact, it doesn't contain any specific facts).  Gibson had nothing to do with bringing the Indian wood in -- Henry J. appears to be deliberately lumping the Madagascar and Indian wood raids together (probably in an effort to gain public support by confusing two completely separate issues, one involving possible CITES violations and the other definitely not).

India doesn't need to change any of its laws, since 6mm thick wood is already an allowable export if worked sufficiently to qualify as HTS 9209.92.00.

banjoak - Posted - 09/07/2011:  20:17:37

quote:

---

Originally posted by Duke of Pearl

It contains valid general Lacey Act info, but as far as Gibson is concerned gets all the "facts" wrong (in fact, it doesn't contain any specific facts).  Gibson had nothing to do with bringing the Indian wood in -- Henry J. appears to be deliberately lumping the Madagascar and Indian wood raids together (probably in an effort to gain public support by confusing two completely separate issues, one involving possible CITES violations and the other definitely not).

India doesn't need to change any of its laws, since 6mm thick wood is already an allowable export if worked sufficiently to qualify as HTS 9209.92.00.

---

What qualifies as 9209.92 in India for export, (what they call a part versus raw material) doesn't qualify as 9209.92 for import (or export) in the the US (they consider it raw material)

I am not sure the wood raids are separate. The above same issue (9209.92) is brought up in both. Has the DOJ has  concluded it's investigation of the former, or is this part of a continuing investigation? Since no charges have yet been brought.

Duke of Pearl - Posted - 09/08/2011:  01:34:00

Here are 179 pages showing a Nashville, TN, court memorandum, a search warrant affidavit, and an Environmental Investigation Agency (EIA) report concerning the 2009 Gibson raids and Madagascar and U.S. wood Tariff regulations (courtesy Stephen Bacon, on Musical Instrument Makers Forum/MIMF): scribd.com/doc/63755524/US-v-E...to-Strike. 

banjobart - Posted - 09/08/2011:  07:42:23

Did you notice that Henry will be in the audience at the job's speech tonight (Thursday) as a guest of rep. Blackburn of Tennesee?

This is great, I love it.

sugarinthegourd - Posted - 09/08/2011:  07:55:26

quote:

---

Originally posted by Duke of Pearl

Here are 179 pages showing a Nashville, TN, court memorandum, a search warrant affidavit, and an Environmental Investigation Agency (EIA) report concerning the 2009 Gibson raids and Madagascar and U.S. wood Tariff regulations (courtesy Stephen Bacon, on Musical Instrument Makers Forum/MIMF): scribd.com/doc/63755524/US-v-E...to-Strike. 

---

I read that with interest last night. It seems Gibson has been dealing with these issues longer than I'd realized -- there are multiple references to a 1990 US Customs Service Ruling to Gibson regarding the difference between unfinished and finished wood products. It also sheds more light on the Madagascar case, which is almost sure to result in criminal charges. I have to wonder again whether Mr. Nix or others at Gibson have been working with the gov't as cooperating witnesses since the first raid. This latest raid may be the result of complete overzealousness by FWS, or there may be more to it than we realize.

sugarinthegourd - Posted - 09/08/2011:  07:58:48

Some key sections that should help everyone understand the issues in the Madagascar case:

Gibson employee and wood specialist Gene Nix wrote:

"[t]he true Ebony species preferred by Gibson Musical Instruments is found only in Madagascar (Diospyros perrieri). This is a slow-growing tree species with very little conservation protection and supplies are considered to be highly threatened in its native environment due to over exploitation. I spent two and a half weeks in Madagascar this June [2008],I represented our company along with two other guitar manufacturers.... All legal timber and wood exports are prohibited because of widespread corruption and theft of valuable woods like rosewood and ebony"



Nix was correct, Madagascar ebony is extremely rare, and has been banned from exportation and commercialization since 2000 with extremely limited exceptions.



In 2008, Gibson was investigating potential solutions for legitimate harvest, but the solutions were long term, and Gibson was in a hurry. Nix wrote:

"Maderas Barber “has been in the business a long time and may be able to help begin some legitimate harvests. Mr. [Roger] Thunam on the other hand should now be able to supply Nagel with all the rosewood and ebony for the grey market"



Nix knew that the grey market meant purchasing contraband in the form of unfinished blanks from Thunam, and Gibson did just that, even though Nix advised:

"Key things we saw [at Thunam’s Madagascar business]- large yard, wood in yard not properly stored; it is under temporary seizure and cannot be moved: substantial stored quantities of cut items for export including blanks for various instruments. Mostly ebony..."

Edited by - sugarinthegourd on 09/08/2011 08:18:46

sugarinthegourd - Posted - 09/08/2011:  08:07:41

Please read the above, and realize that Gene Nix physically traveled to Madagascar, spent two and a half weeks there, and reported back to Gibson HQ that "all legal timber and wood exports are prohibited," but that they could be acquired through the "grey market" from infamous Chinese "wood baron" Roger Thunam, woods that were under government "seizure" -- and then Gibson (perhaps with Mr. Nix's involvement) did exactly that, and imported these woods that it clearly knew were illegal.

Once you've digested that, read this:

"Federal agents first raided Gibson factories in November 2009 and were back again Aug. 24, seizing guitars, wood and electronic records. Gene Nix, a wood product engineer at Gibson, was questioned by agents after the first raid and told he could face five years in jail.

"Can you imagine a federal agent saying, 'You're going to jail for five years' and what you do is sort wood in the factory?" said Mr. Juszkiewicz, recounting the incident. "I think that's way over the top." Gibson employees, he said, are being "treated like drug criminals."

Mr. Nix hasn't been accused of any wrongdoing. He couldn't be reached for comment.

"What you do is sort wood in the factory?" That's hardly the extent of Mr. Nix's alleged involvement. And Henry J knows it. So much for his credibility.

No wonder he is now playing offense.

Edited by - sugarinthegourd on 09/08/2011 08:18:04

banjotom5 - Posted - 09/08/2011:  08:31:51

Help me out here. I've read this thread twice only to understand half of it.

I live in the USA. I am selling a guitar to a friend in Canada. It has an ebony fingerboard. Can I ship it to him? Could I lose the instrument?

Help me out.

RB00 - Posted - 09/08/2011:  09:00:02

Here is an article about Henry attending the speech tonight.

nashvillecitypaper.com/content...rns-guest

sugarinthegourd - Posted - 09/08/2011:  09:10:47

quote:

---

Originally posted by RB00

Here is an article about Henry attending the speech tonight.



nashvillecitypaper.com/content...rns-guest

 

---

I like how the congresswoman calls Gibson Guitar a "small business."

Duke of Pearl - Posted - 09/08/2011:  09:13:46

Talk to a lawyer.

Virtually ALL ebony and rosewood is and always has been brought into the U.S. and every other country in the same form as Gibson's -- material that's over 6mm thick.  If the courts decide that the World Trade Organization (WTO) Harmonized Tariff System (HTS) classification numbers make this wood illegal, then ALL ebony and rosewood held by everyone in the industry from Gibson, Martin, Taylor, PRS, and on down to the smallest builder, and beyond that to anyone owning a guitar or banjo or any other  instrument containing these woods, have committed federal offenses prosecutable under the Lacey Act (whether or not CITES issues are involved -- it doesn't matter if the woods are from endangered trees as in Madagascar or from sustainable harvests as in India).

At the moment, and probably until all this is settled in the courts, guitars aren't being confiscated over the tariff classifications surrounding the woods used in them.  Any instrument which is part of a commercial transaction or contains any CITES-listed woods must be declared using a USDA/APHIS Form PPQ-505, and possibly a Protected Plant Permit (USDA/APHIS Form PPQ-621).  Use of these forms will require hiring a customs broker (since they need to supply what's called an "entry filer code" number on the paperwork) and there are also other filing costs involved.

There are still guitars crossing the border unchallenged, but that is quickly changing so try that at the risk, however remote, of having the instrument seized, paying huge fines, and possibly doing jail time.  Your call on that...

Good luck. 

sugarinthegourd - Posted - 09/08/2011:  09:20:58

quote:

---

Originally posted by Duke of Pearl

There are still guitars crossing the border unchallenged, but that is quickly changing so try that at the risk, however remote, of having the instrument seized, paying huge fines, and possibly doing jail time.  

---

Chuck, I think you are greatly exaggerating.

First, how is this "quickly changing"? I have heard one story of a guitar being held in an isolated incident where one customs official was suspicious about the abalone. You make it sound like this is happening frequently now.

Secondly, please provide one single example of a well-intentioned US citizen "paying huge fines" or "doing jail time" for shipping a guitar to Canada.

gottasmilealot - Posted - 09/08/2011:  10:05:36

So if Gibson is the only one exporting under a false HTS Code, then that explains why other manufacturer's haven't had legal issues. It sounds like Gibson got caught and is trying to make it sound like a government assault on them, the industry, and businesses in general. If Gibson had people in the field, knew the legalities, and still imported the material, then no use whining now in hopes of drumming up support.  Interesting.

quote:

---

The shipment in question allegedly was exported under a false HTS code, consigned to Gibson Guitar.

"If it's found that Gibson broke the law, then they broke the law. Lacey exists to help to support developing nations in their efforts to protect their own resources. If India made a law that bans export of a certain type of wood in a certain form, then we as an exporting country should respect that law and that's why we have the Lacey Act," Middleton.

Middleton also took issue with claims that the Gibson raid was an attack on U.S. workers.

"Why can't Gibson use American hardwoods and create their American manufactured product with trees that grow here in the United States?" she said.

Compliance Specialists' Krause said that the U.S. government likely has a higher expectation of a company like Gibson that is a more experienced importer of wood than small craftsmen.

"If you're going to set a precedent for the rest of the country you'd want to cover as many bases as possible, and that's why I think Gibson is being prosecuted," Krause said.

Krause suggested that the Lacey Act's wood provisions currently don't give the Department of Justice much room to use discretion in judging the seriousness of infractions like typical law enforcement agencies.

While some countries may not enforce laws regarding wood importing because they don't have sophisticated tracking systems, the Lacey Act requires federal officials to enforce the law and take action.

"There's no provision that goes, ‘Find out if this law is important to the country. And then if it is important enforce it and if it's not important don't enforce it,'" Krause said.

Krause added that the Forest Stewardship Council defense posed by Gibson may not do it much good.

"We tell people that FSC is no guarantee that you'll be in compliance with the Lacey Act, as we see in this case," Krause said.

"There is no way to be certified as Lacey Act compliant. There are no hoops that you jump through and that gold seal that you get to say that your practices are Lacey Act compliant. The burden is really on the importer, to document it well and to know exactly what species they're importing," Krause said. 

Hotrodtruck - Posted - 09/08/2011:  10:23:13

If LMII actually imports the wood and then sells it to instrument manufacturers, why is Gibson singled out? Why are other manufacturers not being raided? Why is India not subjected to sanctions for illegal trade practices? Why have there been no prosecutions? Can an American company be prosecuted, in America, for a foreign law that someone else broke?

Why can Gibson (and others) buy the same wood if the inlay, frets and final shaping are done by foreign workers, resulting in loss American jobs?

There is so much our government need to answer. It seem like our government would be interested in protecting our own citizens. There is no environmental issue here.

Duke of Pearl - Posted - 09/08/2011:  11:07:33

Virtually ALL ebony and rosewood is and always has for decades been brought into the U.S. and every other country in the same form as Gibson's -- material that's over 6mm thick and under HTS 9209.92.00.  If the courts decide that the World Trade Organization (WTO) Harmonized Tariff System (HTS) classification number 4407 makes this wood illegal, then ALL ebony and rosewood held by everyone in the industry from Gibson, Martin, Taylor, PRS, and on down to the smallest builder, and beyond that to anyone owning a guitar or banjo or any other  instrument containing these woods, have committed federal offenses prosecutable under the Lacey Act (whether or not CITES issues are involved -- it doesn't matter if the woods are from endangered trees as in Madagascar or from sustainable harvests as in India).

banjoak - Posted - 09/08/2011:  11:29:11

quote:

---

Originally posted by Hotrodtruck

If LMII actually imports the wood and then sells it to instrument manufacturers, why is Gibson singled out? Why are other manufacturers not being raided? Why is India not subjected to sanctions for illegal trade practices? Why have there been no prosecutions? Can an American company be prosecuted, in America, for a foreign law that someone else broke?

Why can Gibson (and others) buy the same wood if the inlay, frets and final shaping are done by foreign workers, resulting in loss American jobs?

There is so much our government need to answer. It seem like our government would be interested in protecting our own citizens. There is no environmental issue here.

---

Nothing says LMII is not going to be part of it. The raid was where the wood ended up.

What illegal trade practices conducted by India you are referring to?

As far as foreign workers, each country decides it's own rules what they can export and import, whether finished goods, parts, or raw materials. Often they decide their trade policy in consideration of protection of jobs in it's country. US does not ban the import of unfinished wood for Americans to do the work on.

Duke of Pearl - Posted - 09/08/2011:  11:55:21

Quote: "US does not ban the import of unfinished wood for Americans to do the work on. "

In the case of ebony and rosewood that's exactly what we're looking at here -- if over 6mm thick they're banned unless made into a completely finished product using foreign labor, and which cannot be reworked into another form.  NO ebony or rosewood will be available for making guitars, and everything here now is illegal and contraband...if the court upholds the tariff classification charges against Gibson.

banjoak - Posted - 09/08/2011:  12:04:01

quote:

---

Originally posted by Duke of Pearl

Virtually ALL ebony and rosewood is and always has for decades been brought into the U.S. and every other country in the same form as Gibson's -- material that's over 6mm thick and under HTS 9209.92.00.  If the courts decide that the World Trade Organization (WTO) Harmonized Tariff System (HTS) classification number 4407 makes this wood illegal, then ALL ebony and rosewood held by everyone in the industry from Gibson, Martin, Taylor, PRS, and on down to the smallest builder, and beyond that to anyone owning a guitar or banjo or any other  instrument containing these woods, have committed federal offenses prosecutable under the Lacey Act (whether or not CITES issues are involved -- it doesn't matter if the woods are from endangered trees as in Madagascar or from sustainable harvests as in India).

---

Is this an assumption on your part or do you have something to back it up.

Customs and Border Protection is the only agency that can provide legally binding advice or rulings on classification of imports.

There rulings have stated that blanks need to be 4407. Not one that I can see ever said otherwise. Which ruling has CBP issued it as 9209?

faqs.org/rulings/category.html

So are you saying you have documentation, statements, that all builders have been violating CBP's rulings?

I keep wondering why the last part of your statement about individual ownership of instruments keeps on getting drug into the story. It just seems like the old scare tactic lobbyist of various industries (telecom, banking) use. Quite a stretch of reality.

banjoak - Posted - 09/08/2011:  12:19:21

quote:

---

Originally posted by banjotom5

Help me out here. I've read this thread twice only to understand half of it.

I live in the USA. I am selling a guitar to a friend in Canada. It has an ebony fingerboard. Can I ship it to him? Could I lose the instrument?

 

Help me out.

---

Anything you ship to a foreign country has to go through their customs authority, subject to tariffs and fees.

So you have to check with the Canadian canadacustomsinfo.com/ or cbsa-asfc.gc.ca/import/ar-da/menu-eng.html

Only they can tell you for sure, but they seem to have a very friendly web site for questions.

sugarinthegourd - Posted - 09/08/2011:  12:33:56

quote:

---

Originally posted by Duke of Pearl

If... makes this wood illegal, then ALL ebony and rosewood held by everyone in the industry from Gibson, Martin, Taylor, PRS, and on down to the smallest builder, and beyond that to anyone owning a guitar or banjo or any other  instrument containing these woods, have committed federal offenses prosecutable under the Lacey Act

---

Wrong. That is a completely incorrect interpretation of the Act.

Not only that, if this were in fact a correct reading, such a law would be be unconstitutional under the U.S. Constitution: Article I, section 9, clause 3.

The portion of the Act (most probably) relevant to Gibson's latest troubles is quite simple:

(d) False labeling offenses

It is unlawful for any person to make or submit any false record, account, or label for, or any false identification of, any fish, wildlife, or plant which has been, or is intended to be—

        (1) imported, exported, transported, sold, purchased, or received from any foreign country; or

        (2) transported in interstate or foreign commerce.

Sultans of Claw - Posted - 09/08/2011:  13:23:37

Whoo, boy, am I ever glad I left the tags on my mattress and box springs.

banjer5 - Posted - 09/08/2011:  13:28:51

FWIW Fox News did a piece on the matter last evening and the general opinion was it was all political.

Fred

DanielT - Posted - 09/08/2011:  13:36:18

quote:

---

Originally posted by banjer5

FWIW Fox News did a piece on the matter last evening and the general opinion was it was all political.

Fred

---

I am shocked -- shocked, I tell you -- that a network as fair and balanced as Fox would reach that conclusion.

minstrelmike - Posted - 09/08/2011:  14:05:58

quote:

---

Originally posted by banjer5

FWIW Fox News did a piece on the matter last evening and the general opinion was it was all political.

Fred

---

Is there _anything_ that has to do with the law that isn't political?

That's what makes it so easy to slant an article without appearing to.

Duke of Pearl - Posted - 09/08/2011:  16:15:18

Quote: “The portion of the Act (most probably) relevant to Gibson's latest troubles is quite simple: (d) False labeling offenses”

Not quite that simple.  The declaration requirement is only a small part of the Lacey Act, and falsifying documents is the least of Gibson's problems in the 2009 raid and seizures.  The 179-page document (which includes a lengthy court memorandum) linked in today's earlier post makes it very clear that the bigger issues are legality of the wood (which is why the court turned down Gibson's requests to hand it back) and the product definitions of the tariff numbers involved ("finished instrument parts" or "sawn lumber").  It appears that none of this is new to Gibson (contrary to Henry J.'s feigned innocence), as Gibson has been arguing with the court on these issues since 1990.  Read the whole thing.

Also, review this Lacey Act Primer for a more general overview regarding both personal and commercial musical instruments: Lacey Act (16 U.S.C. §§ 3371-3378).  Under Lacey, “It is now unlawful to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any plant, with some limited exceptions, taken or traded in violation of the laws of the U.S., a State, or an Indian Tribe, or any foreign law that protects plants” (from a recently published USFWS factsheet on musical instruments that can be seen here (“International Trade in Plants and Wildlife, information for musicians and manufacturers of musical instruments”).  An excellent and recently updated piece by John Thomas regarding the impact of CITES on traveling musicians is in the online version of the Fall, 2008 Fretboard Journal.

Among many other things, the Lacey Act:

1) Prevents trade on wood products made from illegally harvested lumber (the main issue with Gibson's Madagascar wood, along with the tariff number inconsistencies and product definitions)

2) Allows the U.S. to interpret another country's laws differently than they themselves do. 

3) Says there can be a violation even if the foreign law isn't enforced in that country.

4) Says that even though a violation may not be a criminal one in the foreign country, it will be in the U.S.

In other words, you could be totally compliant according to foreign law as required by Lacey, and yet be cited because the U.S. decides to interpret those laws differently!

There is no “innocent owner exception” for border crossings that, however unintentionally, violate declaration requirements.

For most of us, here's a hugely critical point to keep in mind: regulations demand that “any shipment requiring a permit” may not be cleared informally regardless of how small its size or value (no de minimis exceptions: Q&A no. 9); BUT although shipments containing any amount of wildlife products do require a FWS Import/Export Permit/License, this “permit” is not what the law is referring to – formal clearance is necessary only when species-specific permits are involved (see: FWS Factsheet)

Since May 1, 2010, when filling out import forms and documents APHIS has been requiring that exact quantities for each species of material in a shipment must be tallied and listed separately using only standardized metric units: kg, m, m2, m3.  For a guitar, this means calculating exactly how much mahogany is in the neck and kerfing; how much ebony in the fingerboard, bridge, and heelcap; how much rosewood in back, sides, and peghead veneer; how much maple in the bindings; how much of each species of shell used in the inlays.  The actual cost for each material must also be declared.  Several luthiers have now figured out typical quantities for each model of guitar they make and use these saved files for completing their border clearance documents. (aphis.usda.gov/plant_health/la...asure.pdf).

For materials and products made from antique or pre-Convention ESA-listed species, as soon as one of these items is substantially modified or used to make a new product, its exempt status instantly disappears. Unfortunately, even with legitimate documentation the age of the original item does not automatically carry over to the use of its material in another one.  Instead, the new article assumes the date of its recent remanufacture, thus now making it post-ban and illegal to sell or to import or export.  In fact, if an antique were to only be restored using either old or new patches of the same ESA-listed species, its legal age will be moved forward to the date of the new repair, with the same insane results.

This is the regulatory restriction which prevents guitar picks or pickguards being made from recycled antique tortoiseshell bracelets, combs, and boxes, no matter how old they might be.

Title 19 CFR 10.53 – Antiques

(e) Antique articles otherwise prohibited entry by the Endangered Species Act of 1973 (16 U.S.C. 1521, et seq.) may be entered if: (1) The article is composed in whole or in part of any endangered or threatened species listed in 50 CFR 17.11 [animals] or 17.12 [plants], (2) The article is not less than 100 years of age, (3) The article has not been repaired or modified with any part of any such endangered or threatened species, on or after December 28, 1973, (4) The article is entered at a port designated in 12.26 of this chapter, (5) A Declaration for Importation or Exportation of Fish or Wildlife (USFWS Form 3177) is filed at the time of entry with the port director who will forward the form to the U.S. Fish and Wildlife Service, and (6) The importer meets the requirements of paragraph (a) of this section. 

The situation is entirely different for antique or pre-Convention Brazilian rosewood.  BW is listed in CITES Appendix I; but since it isn’t listed by ESA, pre-Convention items and materials can be freely modified, reworked, repaired, and repurposed without losing their antique or pre-ban status. 

APHIS recently issued guidelines for getting exemption certificates on pre-2008 items (including guitars) which contain unknown woods or lack other information (but only if the wood is really not identifiable!): aphis.usda.gov/plant_health/la...codes.pdf

Within the U.S. the burden of proof falls on enforcement agencies to prove an item is illegal – something not possible when a paper trail is lacking.  But when the material or product is to be exported, evidence of legality shifts to the exporter – something equally impossible without a paper trail.  Thus while remaining in the U.S. no federal permitting is required and the item cannot be declared illegal or contraband, even though questions might be raised about its legality (the above comments based on private emails between David Berkowitz and FWS Division of Management Authority Branch of Permits Chief, Tim Van Norman).  “However, the importer/exporter does not bear the full burden of showing legality.  For example, if a species is obtained in a country that allows export without documentation, but that species is protected in a third country, the government would have to show that it came from that third country, [while] the importer/exporter would not have to prove that it did not” (quoted from a private note to me sent by FWS Branch of Operations Chief Craig Hoover).

Fines and penalties for non-compliance can be extremely severe ($100,000-500,000 and 1-5 years in jail) especially if it’s determined that violations were done “knowingly” and without exercising “due care” in researching applicable laws; punishment is reduced to forfeiture of goods and perhaps several hundred dollars in fines if it can be shown illegal activity was “unknowing” and that “due care” was reasonably attempted.  Lacey Act provisions and a flow chart of penalties and fines for non-compliance on plant products are summed up in an Environmental Investigation Agency document, The U.S. Lacey Act (penalties are the same for both animal and plant violations).

All, and this means ALL, items imported or exported must be assigned very specific identification numbers according to nationally or internationally recognized tariff systems.  Both the 10 digit Harmonized Tariff Schedule (HTS) and Schedule B classification numbers are based on simpler 4 and 6 digit “HS” numbers as used internationally and by the North American Free Trade Agreement (NAFTA).  In the U.S. only the 10 digit numbers may be used, although there are two separate lists for import and export classifications in which the numbers for any given item may or may not be the same (the export system contains more detailed classification categories, while the import system is slightly simpler).

In practice, when exporting from the U.S. it’s acceptable when filing the AES/Census Bureau’s EEI to use either the HTS or the Schedule B code numbers; but when importing into the U.S. only the HTS numbers can be used on any Customs or FWS documents (that’s just the way it is – it doesn’t have to make sense!).  The below links on the alphabetical lists may only get you to the basic 6-digit code, in which case you would use that information to search for the full 10-digit number by “drilling down” through the successive section and chapter links:

HTS (import or export) section and chapter listing.

HTS (import or export) alphabetical list of items.

AES Schedule B (export only) section and chapter listing.

AES Schedule B (export only) alphabetical list of items.

The first two digits in any classification number refer to the regulations Chapter for an item (“03” is Chapter 3, “92” is Chapter 92, etc.). 

Edited by - Duke of Pearl on 09/08/2011 16:20:05

kipperr - Posted - 09/08/2011:  16:38:46

quote:

---

Originally posted by Sultans of Claw

Whoo, boy, am I ever glad I left the tags on my mattress and box springs.

---

 So you SAY  -  I'm calling some agency as we speak and giving them your info.

Sultans of Claw - Posted - 09/08/2011:  17:30:24

My hope is that they will be so impressed with my good stewardship of the U.S. Code law that they won't even bother to look at my instruments.

Sgtp3pp3r - Posted - 09/08/2011:  18:06:12

What all of this tells me is that I simply cannot export anything any longer, for essentially two reasons:

1)  I can't afford the cost of the licenses and per-shipment fees, and

2)  The documentation support requirements are impossible for a small business instrument builder like to satisfy, partly because I do not have the information required for a large portion of my stash of wood and inlay materials, and because I cannot afford to spend the time it would take to research the information either!

Obviously companies much larger than me (StewMac for example) are taking the same position - they won't ship anything governed by the Lacey Act outside the USA!

What can we do about this situation?  Chuck - what do you suggest?

--Steve

sugarinthegourd - Posted - 09/08/2011:  18:07:24

Chuck, once again:

quote:

---

please provide one single example of a well-intentioned US citizen "paying huge fines" or "doing jail time" for shipping a guitar to Canada.

---

sugarinthegourd - Posted - 09/08/2011:  19:02:15

quote:

---

Originally posted by Duke of Pearl

Quote: “The portion of the Act (most probably) relevant to Gibson's latest troubles is quite simple: (d) False labeling offenses”

Not quite that simple.  The declaration requirement is only a small part of the Lacey Act, and falsifying documents is the least of Gibson's problems in the 2009 raid and seizures. 

---

Duke of Pearl - Posted - 09/08/2011:  19:45:36

Their latest troubles involve not just tariff classification mislabeling but whether any ebony and rosewood over 6mm thick are even legal at all to export in an "unfinished" state. If found to be illegal, changing the paperwork entries wouldn't solve the much larger problem, because the ruling would then apply to huge inventories of Indian woods held by every guitar maker big or small in the U.S. and worldwide (these are international tariff codes).  It would render the woods contraband with no recourse for getting re-documented, and any instruments containing these woods would also become problematic (especially when crossing international borders). 

There have been a small number of instrument seizures and fines, most or all involving commercial activities, and many other very bad experiences involving antiques, statuary, and smaller sized wood shipments.  I'm contacting people now to see if they're willing to be mentioned as examples, but nobody wants to draw more attention than necessary!  Also, since many of these never go to court they're not really a matter of public record -- citations are issued and a fine is paid, and in some instances the item is voluntarily surrendered rather than risking losing much more by going to court.  One friend, Don Musser, in gathering info to apply for a blanket exemption certificate for what remains of a large but unpapered Brazilian rosewood purchase in 1981, ran into this same resistance when another luthier who was eyewitness to the purchase refused a request for a supportive statement with a flat-out "no".  Can't blame him.  Will post results on here about how successful he is in getting an exemption based on just a notarized written history...

banjoak - Posted - 09/08/2011:  20:06:39

There you go, Henny Penny's proof the sky is falling. What more would need than Henny Penny's interpretation?

gottasmilealot - Posted - 09/08/2011:  20:33:39

pick1936 - Posted - 09/08/2011:  21:25:37

To the  above.  Fox  is  fair &  balanced.  They  are so   fair  They  will  bend  over  backwards  untill  There  butts  on  the ground  to  be  HONEST...   And  I  really  Think  everyone  knows  wha'ts  really  Going  on  with  this..    I  have  a  friend  who  bought  a  farm  3  years   ago.  Most  of the  80 years  old  barn  was  mostly  Walnut.  He  had  Robin  smith  make   Rim, and  Neck  from  it.  I  guess  it  is  O.K.     But  We really  need  to hope  Gibson  will  not  have  to shut  down factory's.   So  many  jobs  lost   already.

Nechville.  In  Higginsville.

Lee  kelso

Nechville.  In  Higginsville.

Lee  Kelso

BanjoDaddio - Posted - 09/09/2011:  00:19:49

Chuck and John....I love you guys......This is better than all the Harry Potter books put together....What will happen next?.....It'll be hard getting a seat at the USA vs Gibson trial.....Should have listened to my mother and gone to law school though, cause I may not be able to understand the climax to all this when you all post after it's over.....Ah, hell, FOX will have it.......Gentleman--please continue

Sultans of Claw - Posted - 09/09/2011:  04:25:51

I'd still like to have a Southern Jumbo!

banjoak - Posted - 09/09/2011:  04:56:16

quote:

---

Originally posted by Sultans of Claw

Whoo, boy, am I ever glad I left the tags on my mattress and box springs.

---

You think that will let you take the mattress and box springs on an airplane to a foreign country? I hope you take the aisle seat.

Big Joe - Posted - 09/09/2011:  08:39:12

I still have a question that bothers me. If Gibson did NOT own the wood yet. If it was purchased by LMII, owned by LMII, warehoused in an LMII facility, and THEY imported it and did the paperwork, then why is it the problem of Gibson? The Feds have not made that clear. Just as the original raid a couple years was more about the supplier of the wood than the wood itself (and there is plenty to that story that few know and will not be discussed on this forum), but the end user was the victim of the raid. In my opinion it is fairly simple. Raid LMII or the wood supplier of the original raid, and nobody cares. It does not make front page news. It does not get the news media on scene and does nothing to frighten the other builders and public.

Why Gibson? Is it because they are "evil"? No. Whether that is true or not is for another day, but in this case they are the true American Icon that looms over the entire instrument world. They are still American made and use American workers and they build an entire line of instruments covering the entire spectrum of the music field. Whether electric, acoustic, bluegrass, or other, Gibson is the name that is best known. Martin certainly is an American Icon to many, especially those of us who play, but not to the world as a whole. The name that is most often associated worldwide with great musical instruments (deserved or not) is Gibson. If you really want to get the message out, kick the big dog, not the second biggest or third biggest. It does not matter to the Feds whether they really have a case, whether there is any validity in the story they spread, or even if they win in any manner. They accomplished the goal they wanted to reach. They have scared the entire industry and many builders... large and small... are being very careful with the woods they use and where they go.

I am not anti-Gibson, nor am I pro-Gibson management. In this case I just think it is a smokescreen to frighten people on the backs of what they perceive to be the deepest pockets and most noticeable name on the planet. Nothing new for a government run amuck. The original case has never been brought to court by the feds and likely never will be. The second case is even far weaker. Only time will tell the outcome, but in the meantime, everyone in the industry is getting an emergency plan together. That may be alternative woods, or it may be a good legal argument. In any case, the industry may well be in the throes of change. Won't be the first time, and probably not the last time. I guess we just need to be thankful for the instruments we have "Pre-Raid". Maybe we will begin listing our banjos, etc. as "Pre-Raid" banjo. Maybe they will be as valuable as "Pre-War" someday :).

sugarinthegourd - Posted - 09/09/2011:  10:13:16

quote:

---

Originally posted by Big Joe

I still have a question that bothers me. If Gibson did NOT own the wood yet. If it was purchased by LMII, owned by LMII, warehoused in an LMII facility, and THEY imported it and did the paperwork, then why is it the problem of Gibson?

---

That's a really good question, but I don't think any of us knows the answer. It could be because the consignee was not identified on the paperwork, and [from the affadavit] "Natalie SWANGO, General Manager of LUTHIER MERCANTILE, identified the actual ultimate consignee as GIBSON."

There are other possibilities though. We don't know!

As an exercise, though, let's JUST IMAGINE that the gov't has a CW -- a cooperating witness, an informant -- at Gibson. This may well not be the case, but let's just pretend. And let's pretend that this informant told the FWS that Gibson's lawyers, under heat and trying to interpret the law conservatively, prepared a brief for Gibson in which they asserted that their imports of "FSC certified" rosewood and ebony fingerboard blanks from Atheena in India may not be legal under Lacey Act. [Follow this link and click "Product Info" tab to see why this could be the case.] This is all just a "what if" -- I don't know any of the preceding to be true and I'm not saying it is. Further, let's imagine that our imaginary informant told the gov't that in response to this brief from its legal counsel, Gibson had decided to change the way its Indian hardwoods were imported, using a straw buyer who would deliver the wood to Gibson's warehouse but not name them as the consignee, and who would list the products as "veneer" rather than as "sawn wood over 6mm."

A scenario like that might answer your question. Is this scenario accurate? Probably not -- I just made it up! Is it possible? Sure. So are a lot of other imaginable scenarios, in some of which Gibson is slightly or very guilty of various things, and in some of which the government is guilty of various degrees of malfeasance.

Any of an infinite number of imaginable scenarios could actually be true! The point is, we don't know. Not yet any way. So we don't know if Gibson is guilty or if the government is guilty.

We just don't know!

John

Edited by - sugarinthegourd on 09/09/2011 10:17:10

Duke of Pearl - Posted - 09/09/2011:  10:25:03

Quote: "...why is it the problem of Gibson...?"

It's Gibson's problem for several reasons, none of which the media are bothering to report even though the information has been made available.  First, they wouldn't have even been noticed, much less raided, if not for having mistakenly been entered as the "consignee" on a shipment of Indian wood being imported by LMI (they were LMI's customer, and LMI was the consignee).  Here’s a statement from LMI's Natalie Swango:

"I incorrectly listed Gibson as the consignee on the Lacey paperwork...the material was destined for them, but at this time LMI owns and is (was, ?) warehousing it." 

Secondly, since Gibson's activities were obviously being monitored because of the 2009 investigation, when their name showed up on import documents a second mistake by LMI's broker regarding the tariff number made it look like something fishy was going on and this triggered more raids.  Again, from Natalie Swango:

"The broker for LMI had someone new working in their office who listed the "entry" as veneers <6mm despite all other paperwork listing it as sawn wood and fingerboards in excess of 6mm.  The broker sent a letter explaining the error and attempted to contact FWS to correct the entry, but they refused to speak to him.  A copy of the letter was sent to LMI as well as FWS.”

Thirdly, in a comedy of errors, a third misstatement really ran up a red flag for the feds.  LMI had been paying for storage space at the same Nashville warehouse being used by Gibson, and was having the wood drop-shipped to that address in order to make it available to the factory without needing to unnecessarily take delivery in California and then just reship it.  To again quote Swango:

 "The warehouse employee incorrectly informed the feds as to the ownership (although they bill me for the storage fees).  The officers incorrectly came to the conclusion that we are smuggling wood.”

In the normal course of any business mistakes like this frequently occur and are easily corrected.  Inconsistent tariff codes are something that's happened on a couple of our own shell import shipments when some desk jockey at the brokerage decides to change the correct tariff codes we supply (thus instantly converting a load of shell blanks into a shipment of "jewelry", for instance!).  Making the same errors on federal documents usually means having to amend or re-file and waste a lot of extra time; but with Gibson already under investigation it's probably understandable why the feds were more than willing to assume the worst and jump on the chance to really nail the company.  Ironically (and speaking from personal experience), government agencies are among the worst offenders when it comes to screwing up names, numbers, and other details on paperwork they process, so they're not exactly walking the high road on error-free paperwork either... 

Quote: "If you really want to get the message out, kick the big dog, not the second biggest or third biggest. It does not matter to the Feds whether they really have a case, whether there is any validity in the story they spread ..."

That's an unfounded assumption, and not really what's going on here.  Here are 179 pages showing a Nashville, TN, court memorandum, a search warrant affidavit, and an Environmental Investigation Agency (EIA) report, concerning the 2009 Gibson raids and Madagascar and U.S. wood Tariff regulations (courtesy Stephen Bacon, on Musical Instrument Makers Forum/MIMF): scribd.com/doc/63755524/US-v-E...to-Strike.  It's lot of tedious reading, but what you'll immediately notice are that the raids are based on alleged violations of very real laws (yet to be debated in court), AND that Gibson has actually been in court battles over the tariff classification issues since 1990!  Unlike the most recent raids which don't involve any endangered CITES-listed woods, the 2009 raid definitely does concern what seem to be illegal logging of endangered trees (and purchasing already seized wood from a shady Indian dealer!).  What both events have in common are serious questions about Harmonized Tariff System (HTS) numbering definitions. 

 It seems like Gibson's been brewing for a fight., but typical of the media spin that Gibson's Henry J. has been pumping out is this Fox News coverage:

foxnews.com/politics/2011/09/0...atestnews

Quote: “Had Gibson imported finished parts from Madagascar instead of ‘blanks,’ it would have been perfectly legal” – Wrong!  This wood came from protected stands of CITES-listed endangered national forests, logged/sold during a time of political upheaval and questionable governmental control.  The other large U.S. guitar companies backed out on using the wood, but Gibson didn’t.  One wonders why?  Any “finished” parts or guitars out of Madagascar would have generated exactly the same problems.

Quotes: “We are being singled out. Very much so” and “We really don’t know why they are picking on us” – As the article points out, Gibson got themselves in trouble back in 2009, by purchasing wood that nobody else wanted anything to do with (obviously for good reason).  Paperwork errors by LMI and their broker on the Indian shipment would usually have been fixable, but since those errors seemed to implicate Gibson in an illegal import the U.S. authorities initiated the raids and refused to respond to the correction request.  Gibson actually had nothing to do with purchasing or importing the Indian shipment, but since one of the paper errors had been naming LMI’s customer (Gibson) as the “consignee” instead of themselves, that’s all the feds needed to go after them.



Henry J.’s media rants about being “singled out” and “picked on” are pure dissembling, to garner public support and obscure the fact that not one but two totally separate issues are involved: possible CITES violations on the endangered Madagascar woods, and Lacey Act paperwork mistakes on the non-endangered Indian woods.  I think Gibson's in deep trouble on the Madagascar stuff and will skate free on the Indian.  If Henry J. feels the same, it would be to Gibson's P.R. advantage to lump the two together and then feign innocence on the Indian as though that carried over to the other without anyone noticing there are 2 different things involved.

Personal instrument preferences aside, nobody wants to see  Gibson unfairly treated, or more American jobs eliminated.  But at the same time, if laws really have been seriously violated Gibson shouldn't enjoy any special exemption from enforcement and prosecution.  They should also enjoy "due process", something that seems to be hugely lacking at this point...

banjoak - Posted - 09/09/2011:  11:25:35

quote:

---

Originally posted by Big Joe

I still have a question that bothers me. If Gibson did NOT own the wood yet. If it was purchased by LMII, owned by LMII, warehoused in an LMII facility, and THEY imported it and did the paperwork, then why is it the problem of Gibson? The Feds have not made that clear. Just as the original raid a couple years was more about the supplier of the wood than the wood itself (and there is plenty to that story that few know and will not be discussed on this forum), but the end user was the victim of the raid. In my opinion it is fairly simple. Raid LMII or the wood supplier of the original raid, and nobody cares. It does not make front page news. It does not get the news media on scene and does nothing to frighten the other builders and public.



Why Gibson? Is it because they are "evil"? No. Whether that is true or not is for another day, but in this case they are the true American Icon that looms over the entire instrument world. They are still American made and use American workers and they build an entire line of instruments covering the entire spectrum of the music field. Whether electric, acoustic, bluegrass, or other, Gibson is the name that is best known. Martin certainly is an American Icon to many, especially those of us who play, but not to the world as a whole. The name that is most often associated worldwide with great musical instruments (deserved or not) is Gibson. If you really want to get the message out, kick the big dog, not the second biggest or third biggest. It does not matter to the Feds whether they really have a case, whether there is any validity in the story they spread, or even if they win in any manner. They accomplished the goal they wanted to reach. They have scared the entire industry and many builders... large and small... are being very careful with the woods they use and where they go.



I am not anti-Gibson, nor am I pro-Gibson management. In this case I just think it is a smokescreen to frighten people on the backs of what they perceive to be the deepest pockets and most noticeable name on the planet. Nothing new for a government run amuck. The original case has never been brought to court by the feds and likely never will be. The second case is even far weaker. Only time will tell the outcome, but in the meantime, everyone in the industry is getting an emergency plan together. That may be alternative woods, or it may be a good legal argument. In any case, the industry may well be in the throes of change. Won't be the first time, and probably not the last time. I guess we just need to be thankful for the instruments we have "Pre-Raid". Maybe we will begin listing our banjos, etc. as "Pre-Raid" banjo. Maybe they will be as valuable as "Pre-War" someday :).

---

They could not conduct a search at LMII facilities, the wood never went there.  Further it is not uncommon to follow the whole chain, as part of larger operation. No one has been charged so we don't know who might be charged with what; but they want as many possible charges as possible, for instance it's one thing to be charged with just import, but then they need proof that it then got delivered, establishing proof of engaging in the sale of illegal imports.

The wood supplier, besides the problem of being in another country and out of US jurisdiction, the actual delivery certainly makes a stronger case.

--------

Why should immune from obeying US law?

I have not noticed the "story" the FEDS spread. Can you point me to that? All the news stories I've seen, the FEDs are not saying anything about it.

What was the goal they wanted to reach?

pick1936 - Posted - 09/09/2011:  22:56:11

Man  if  the  fed.  and  it's  other  departments   would  work  as  hard   at  Taking  care  of  the   Mexican  border  problems,   as  They  are  with  This  Gibson  problem.   We  would  all  be  better  off.   I  guess  time   will  tell,  BUT  what  will  it   tell??.   will  the  answer  be  fair?    There  could  be   many  jobs  lost,   and  We  already   have  about  3  times  to many  people  out  of  work   right  now.   It's  some  bad  news   anyway  You  look  at it.

Nechville. In Higginsville.

Lee  Kelso

DanielT - Posted - 09/10/2011:  07:51:04

quote:

---

Originally posted by pick1936

Man  if  the  fed.  and  it's  other  departments   would  work  as  hard   at  Taking  care  of  the   Mexican  border  problems,   as  They  are  with  This  Gibson  problem.   We  would  all  be  better  off.  

---

I would imagine they do, but comparing the two in this context is comparing oranges to red herrings.

Mike Casey - Posted - 09/10/2011:  08:07:31

Do the politicians, agency heads and regulators really want to take on Hillbilly Nation?!!!