sugarinthegourd - Posted - 09/10/2011:  08:38:39

Chuck, excellent summary, but I disagree with your retroactive, ex post facto, interpretation of the law in the last sentence. The widest reasonable interpretation would be that international or interstate trade in such items if the instrument parts were imported since these product classes were added to Lacey in 2008 (under the previous Administration) could be regulated. I don't believe that is a reasonable interpretation or that the law will be applied that way, unless smuggling or deception is suspected.

But mere ownership of a guitar with an ebony fingerboard could not be illegal under Lacey, and the burden of proof does remain with the government.

Remember, Lacey does not introduce new documentation requirements for interstate (or intrastate) transport of plants or plant products.

 

Edited by - sugarinthegourd on 09/10/2011 08:53:14

Sgtp3pp3r - Posted - 09/10/2011:  09:03:58

I think Chuck's last Paragraph would only apply to fingerboard materials imported from India, since the FWS's interpretation of India's export law is that fretboard blanks are "sawn logs" rather than finished goods.  If they came from somewhere else, then other export laws would apply.

--Steve

Duke of Pearl - Posted - 09/10/2011:  09:13:58

Quote: "...these product classes were added to Lacey in 2008 (under the previous Administration) "

Wrong on both.  These HTS classifications are courtesy of the World Trade Organization (WTO) and have been around for decades, and neither Lacey nor the previous administration had anything to do with adding them. 

Quote: "I don't believe that is a reasonable interpretation or that the law will be applied that way "

That is the way these regs are being interpreted, in Gibson's case since at least 1990 via rulings by U.S. Customs.

Quote: "...mere ownership of a guitar with an ebony fingerboard could not be illegal under Lacey, and the burden of proof does remain with the government "

Wrong.  For an easy overview of Lacey see: aphis.usda.gov/plant_health/la...rimer.pdf.  Two things need to be understood:

1) Lacey holds third party involvement to be as legally accountable as those directly involved in any violation.

2) 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).

Quote: "the burden of proof does remain with the government "

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). 

sugarinthegourd - Posted - 09/10/2011:  09:27:48

Chuck, my comments were regarding only this phrase from your post:

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

Your comments above are relating to different issues.

In terms of our apparent disagreement here:

quote:

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Originally posted by Duke of Pearl

Quote: "...these product classes were added to Lacey in 2008 (under the previous Administration)"

---

Wrong on both.  These HTS classifications are courtesy of the World Trade Organization (WTO) and have been around for decades, and neither Lacey nor the previous administration had anything to do with adding them.

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My wording there was clumsy. Of course I did not mean to suggest that the 2008 Lacey amendments created these HTS classifications! I meant that timber trade was brought into Lacey by the 2008 amendments. HTS classifications can be used to define "timber trade" in terms of which HTS classifications do and do not fall under Lacey.

Edited by - sugarinthegourd on 09/10/2011 09:29:07

banjoak - Posted - 09/10/2011:  14:27:57

quote:

---

Originally posted by Sgtp3pp3r

I think Chuck's last Paragraph would only apply to fingerboard materials imported from India, since the FWS's interpretation of India's export law is that fretboard blanks are "sawn logs" rather than finished goods.  If they came from somewhere else, then other export laws would apply.

--Steve

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No, you are misinterpreting.

The US looks at items being imported into this country, and uses GRI 1-6 to determine how it fits into the HS classification. The HS and GRI are international conventions for standardized international trade, the US agrees to follow. The agreeing countries are not really free to just make up their own interpretation of things as implied. The standardization of definitions/classification is designed to lessen ambiguity, and loopholes. It doesn't, upon step one matter where it came from, not particularly the species, other than they have under chapter 44 some differences, (coniferous, non-coniferous). So far this has nothing to do with any other countries laws.

So in this case, they assigned the wood under 4407. Further supported by the CBP's long standing ruling that blanks fall under 4407. It does not matter where they came from, it's the same classification, we need to treat each country the same in this regard. It conforms to the procedures of the GRIs. Not based on some interpretation of another countries law.

Now that is 4407, they look up if there are import restrictions, quotas, and tariffs involved from just the US law side. That is certain things are just plain illegal in import into this country (like narcotics) from anywhere. That is not the case with 4407, it can be imported (though other conditions might apply). The next step involves the country of origin, what restrictions and trade agreements, quotas we have. In this case India has clearly and unambiguously prohibited export of 4407. There is no obscure interpretation of their law going on here.

sugarinthegourd - Posted - 09/10/2011:  15:08:33

Quote:

In this case India has clearly and unambiguously prohibited export of 4407. There is no obscure interpretation of their law going on here.

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Have any of you seen the relevant Indian law? It's not clear to me if this is really what their law says, or if FWS is mistaken. I thought it was significant that 4407 seems notably absent from the FSC export product lists I've seen.

Duke of Pearl - Posted - 09/10/2011:  16:56:23

EximGuru is the site that lists Indian regulations.  Regarding the HST 4407 "sawn wood" classification: eximguru.com/hs-codes/44-chapt...les.aspx; regarding HTS 9209.92.00 ("parts and accessories" - note that this does not include the critical word "finished" as misquoted by the feds, although Madagascar regs do use the word): eximguru.com/hs-codes/9209-PAR...-FOR.aspx  ; regarding the 9902.92.0

In the recent raids, one problem with the Indian wood involved with LMI's shipment to Gibson is that for years the Indian government has defined the blank "fingerboards" as qualifying under HTS 9209.92.00.  I can personally verify that LMI physically holds notarized paperwork dated July 13th, 2011, from the Government of India Ministry of Commerce and Industry and signed by Daya Shankar, the Deputy Director of Foreign Trade, which states under “Subject – Clarification regarding export of Fingerboards made of Rose Wood and Ebony” that "…the Fingerboards made of Rose wood and Ebony [ITC (HS) Code 92099200] is freely exportable", and that "This issues with the approval of Director General of Foreign Trade.”

Duke of Pearl - Posted - 09/10/2011:  21:15:51

Oops -- just noticed I forgot to include in the above post this link showing the Indian ban on HST 4407 exports: eximguru.com/exim/dgft/itc-hs-...coal.aspx 

banjoak - Posted - 09/11/2011:  03:35:31

quote:

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Originally posted by sugarinthegourd



Quote:



In this case India has clearly and unambiguously prohibited export of 4407. There is no obscure interpretation of their law going on here.



-------



Have any of you seen the relevant Indian law? It's not clear to me if this is really what their law says, or if FWS is mistaken. I thought it was significant that 4407 seems notably absent from the FSC export product lists I've seen.

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Yes - from India's

ITC-HS, Export Schedule-2, Table-B, Chapter-44, Wood, and Articles of Wood; Wood Charcoal

S.No. 146

Tariff Itrem HS Code  4407 10 10, 4407 10 20, 4407 10 90, 4407 29 10, 4407 29 90, 4407 99 10, 4407 99 20, 4407 99 90

Item Description- Wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or end jointed, or a thickness exceeding 6 mm other than sawn timber made exclusively out of imported logs/timber

Export Policy - Prohibited

Nature of Restriction - Not permitted to be exports

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Prohibited does not mean under special circumstances, or it's okay if it's for guitar fingerboards, or okay special permission, with a note from a minister. They could say that. To do that the India Government needs to change their Export Policy  to Restricted, and then list the detail the Nature of Restriction. Only the Government of India can do this (not another country).

I don't see what is not clear, what ambiguity there is to it, or what "interpretation" FWS or CBP is putting on it.

By the way - the FCS has nothing to do with the Harmonized System, nor anything to do with the investigation.

banjoak - Posted - 09/11/2011:  04:37:15

quote:

---

Originally posted by Duke of Pearl

 

regarding HTS 9209.92.00 ("parts and accessories" - note that this does not include the critical word "finished" as misquoted by the feds, although Madagascar regs do use the word): eximguru.com/hs-codes/9209-PAR...-FOR.aspx  ; regarding the 9902.92.0

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9209.02 doesn't say anything about fingerboards or fingerboard blanks at all. Does not mention one thing about it. It's about "parts". It gives examples, and everyone of those examples resembles a somewhat finished item. Their use of the word "finished" just referring to that significant work or alteration has been done to to a board of wood to make it qualify for a "part" that differentiates it from just a board of wood. That it needs to be transformed from a plain board to a part. The GRIs 1-6 further reinforce this concept.

---

In the recent raids, one problem with the Indian wood involved with LMI's shipment to Gibson is that for years the Indian government has defined the blank "fingerboards" as qualifying under HTS 9209.92.00.  I can personally verify that LMI physically holds notarized paperwork dated July 13th, 2011, from the Government of India Ministry of Commerce and Industry and signed by Daya Shankar, the Deputy Director of Foreign Trade, which states under “Subject – Clarification regarding export of Fingerboards made of Rose Wood and Ebony” that "…the Fingerboards made of Rose wood and Ebony [ITC (HS) Code 92099200] is freely exportable", and that "This issues with the approval of Director General of Foreign Trade.”

---

You keep on bringing up this mysterious notarized paperwork (which nobody has produced, as to what it actually says)

But again that really is not particularly valid.

Under the HS Convention, (maintained by the WCO) the contracting parties are obliged to base their tariff schedules on the HS nomenclature. The WCO sets out the procedures and guidelines to follow. Besides the GRIs 1-6 for classifying; there are proper procedures for Governments to properly list the Export Policy of items. I don't think a notarized letter to a private vendor qualifies.

Finally, if any dispute over HS classifications, the government's classification of the country the item is being imported into takes precedence over the exporting country.

So for years the US has classified blanks as 4407. If LMII/Gibson has been importing them for years under 9209.92, they have for years been violating the US law.

sugarinthegourd - Posted - 09/11/2011:  05:50:44

Thanks guys. And Daya Shankar's statement is that fingerboards (musical instrument parts) are freely exportable, but that's clearly not what these were -- and not what others are importing.

Does anyone know for sure where Martin gets its ebony? I thought they used gaboon from West Africa.

sugarinthegourd - Posted - 09/11/2011:  09:55:34

quote:

---

Originally posted by sugarinthegourd



Does anyone know for sure where Martin gets its ebony? I thought they used gaboon from West Africa.

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Looks like this may be the answer, from Linda, who is the wood buyer for C.F. Martin:

quote:

Solid black ebony = Madagascar or African ebony (predominantly black, but is also dyed sometimes to even out the color)

Solid striped ebony = striped Macassar ebony from Indonesia (never dyed, intended to be striped)