Is America getting silly now?

[Nick]

youtu.be/

Seems to me there's far more 'illegal' organic materials crossing American borders than 'possibly illegal' bits of wood but obviously they think legal "bona-fide" companies are easy targets & far easier to police. If they keep up with their over zealous approach I fear for the future of any US sales from our side of the borders. Wonder how they would approach Cardboard guitars?! Probably demand a breakdown of the woods that were pulped to make it!

[Kim]

This is just what the Lacey Act needed. The situation is so ludicrous that Gibson will win there challenge without too much trouble. When they do, it going to cost the US Gov a shitload of money in compensation and a bucket load of embarrassment to boot. When anything cost a government a shitload of money and embarrassment, its a real attention grabber and you can bet your bottom dollar that the over zealous bureaucratic F-wits who took it upon themselves to translate another countries laws just so they could get a scalp will be scanning the positions vacant columns by the day after they get asked...WTF were you thinking???

If this sort of blow up did not happen, the Lacey Act would have continued to be abused by narrow minded crusaders of conservation with unrealistic expectations and an axe to grind regardless of the consequences. Now that their actions are going to hit the legislators where it hurts, just watch and see as the amendments that should have been there in the first draft to prevent this sort of shit from happening fly across the table so fast that they won't need to turn on the air con for a month cause of the breeze generated by the rattle of the rubber stamp...when are we going to insist upon politicians demonstrating that they have at least a 'little' common sense before they can be put in a position to be law makers??

This sort of stupidity does more damage to the conservation movement than a thousand illegal foresters could with twice as many full worked Stihls and an oil tanker full of 2 stroke.

Cheers

Kim

[peter.coombe]

Unfortunately the video only shows one side of the story, and I was also somewhat upset about it until I saw the other side. Believe Gibson and you start to believe that Ebony and Rosewood from India is now illegal which does have dire consequences for all Luthiers using Indian Ebony and Rosewood, as well as for the Indian loggers, processors and exporters. That is simply just not the case. What is illegal is to export raw logs of Ebony or Rosewood from India.

I could not understand what was going on because it has been legal to export Ebony fingerboard blanks and Rosewood guitar back and sides from India for many years. Thousands, possibly millions have been legally exported from India, and some members of this forum have sucessfully received Ebony and Rosewood from India. There has been much discussion about this on other forums and the following gives the oher side of the story about the most recent raid on Gibson.

"Wednesday's raid of Nashville-based Gibson Guitar Corp was in connection to a June 27 international shipment of 1,250 pieces of ebony wood to Texas, according to court documents.

In an affidavit filed in federal court, agent John Rayfield of the U.S. Fish and Wildlife Service said U.S. Customs agents detained that shipment, alleging it not only violated portions of the Lacey Act but that Gibson officials falsely identified the contents.

Namely, the paperwork outlines allegations that Gibson knowingly changed the description of various imported wood shipments to circumnavigate laws that prevent certain raw materials from India entering the United States. Officials believe Gibson had a hand in identifying those shipments as finished parts for musical instruments, according to documents.

The search warrant also details trips by federal agents to Red Arrow Delivery Service in Nashville, where Gibson kept the wood until it was ready to be manufactured into one of the company’s iconic guitars."

and


"In an affidavit, agent John Rayfield of the U.S. Fish and Wildlife Service said U.S. Customs agents in June detained a shipment of sawn ebony logs from India.

The paperwork accompanying the shipment identified it fraudulently as Indian ebony fingerboards for guitars and it did not say it was going to Gibson, the affidavit said.

In July, agents observed Indian ebony and rosewood delivered to a storage facility for Gibson, according to the affidavit, which asked permission to seize Gibson's business computers."

So what appears to have happened is that US F&W have accused Gibson of importing sawn Ebony logs from India (probably illegal under Indian law) and stating on the import documentation that it was fingerboard blanks - i.e. the documentation does not describe the product that is being imported into the US, which is illegal under US law. So if US F&W can prove this to be the case, Gibson are indeed in deep legal doo doo. It might boil down to legal definitions of what is a sawn log and what is a fingerboard blank. One thing is for sure, the lawyers will have a field day.

Kim, while I agree that the Lacey Act is very poor law and poorly administered, I doubt that this case is likely to change anything. It is not as ridiculous as it first looks. Gibson are trying to make as much public fuss as they can in order to help their case.

Peter

[simonm]

It would be great to get an neutral view of what is going on here. It seems to revolve around three things: what legally constitutes a "log", what exactly the "sawn logs" Gibson got looked like, and how much work must be done on timber for the Indian government to consider it "finished" enough to be exported. (i.e how "sawn" must the logs be to constitute legally exported objects).

The word "log" itself isn't a lot of help because everybody uses it to man something different (e.g. if you are making rosettes the glued up "log" of veneers to be cut into "tiles" is one sort of log, whereas a freshly cut down redwood is something completely different).

Have there been any photos published of the Gibson "sawn logs"?

One good point - lots of lawyers will be be kept busy earning money. Much more than anyone directly with working/using the timber. If you happen to be a lawyer.

[Kim]

So when this goes to court it will comes down to who has interpreted "Indian Law" correctly. What is a sawn log?? To an FWS officer perhaps its a tapered stick. That same stick to the Indian Government could be a completed guitar component to be used for a fretboard. I reckon FWS is going to find themselves in a lot of strife with this. It is hard to imagine that Gibson, having already had a huge stack of wood ceased that is the subject of pending court action, would not have jumped through hoops to have there paperwork in order. If this all comes down to a semi load of 'un-slotted' fingerboards being deemed be FWS to be "sawn logs" then just watch and see what happens.

If Gibson's lawyers have paperwork from the Indian Government stating that "under their law", the consignment sent to Gibson had met all of "their" requirement for what constitutes a "Finished Product", then the FWS case will be sunk. FWS may firmly believe they can successfully argue the Gibson consignment is no more than tapered wood that still bears saw marks, and therefore cannot qualify the term "Finished Product". But you can bet Gibson's lawyers will table documents from the Indian Government stating that a fingerboard 'Blank' has in itself, been manufactured to completion because to slot and inlay that same wood product, would effectively reduce its marketability as a guitar component by restricting its usefulness to only one specific scale length of instrument, and this would 'reduce' the products value reversing the intent of their legislation. I think that any magistrate considering that evidence would have a hard time supporting the FWS case and an FWS come back of "Oh bugga, really? So those slotty thingamees you do, you mean they 'don't' actually all go in the same place for every bloody guitar?? Well whoooda thunk that!!! Sorry for the misunderstanding Mr Gibson, here, you can have ur wood back now let just forget the whole thing".......... just won't cut it.

What will happen if that is in fact the case, is that FWS will find themselves paying out an awful lot of money to Gibson Guitars. Impact to legitimate business operations is one thing, but any amount awarded for damages to the Gibson brand will be astronomical. Add to that all legals etc, and this has the potential to add up to a HUGE figure. In fact it will probably be so big that it is likely hobble the Lacey Act so it become something FWS will be very reluctant to enforce on any big company once this is done and dusted. The lesson the US Government will learn from all this is the same one they should have thought about when they drafted this stupid legislation, and that is that FWS officers cannot possibly be versed in every single international trade law. Asking them to make interpretations of those laws in a way that can have a commercial impact upon those parties that 'are' versed in those international laws that affect 'their own consignments', is a very, very, risky thing to do indeed.

Cheers

Kim

[peter.coombe]

No, I think the crux of the legal argument will be what is the legal definition of a fingerboard blank, and does the Ebony that Gibson imported to the US match that legal definition - i.e. does the documentation match the product that was imported. If not then F&W have a case against Gibson, and they obviously do believe they do have a case. Indian law is a side matter.

Unfortunately there does not appear to be any pictures of the wood in question (yet) so we can't judge for ourselves. If Gibson are confident of their case then one would expect they would publish pictures since at the moment they are defending themselves in the court of public opinion. Fortunately Gibson does have the legal resources to defend themselves. We don't, so just make sure your documentation is correct if you are importing or exporting, especially to the USA. Import/export documentation falsification is also illegal in Australia.

[peter.coombe]

On second thoughts, the fact that F&W are claiming violation of the Lacey Act does tend to indicate that they may be interpreting Indian law. Is a great pity there are no pictures so we are all in the dark. Whatever happens it will be interesting.

[Nick]

On second thoughts, the fact that F&W are claiming violation of the Lacey Act does tend to indicate that they may be interpreting Indian law. Is a great pity there are no pictures so we are all in the dark. Whatever happens it will be interesting.

Apart from the possible hassles of shipping a whole guitar into the States my concern is that F&W are attacking this with such vigour that it could scare many of the smaller tonewood dealers that they will just either throw their arms up in the air & close up shop or refuse to deal with anybody outside of the US borders (similar to the shell problem). The definition of what constitutes a "finished" item seems to be at the centre of this argument & of course both side's lawyers will interpret this differently. Watching with interest too Peter & it would be good to see the 'finished' product in question.

[jeffhigh]

Well it's 10mm thick fingerboard blanks, indian ebony and rosewood, purchased through LMI.

http://berkowitzguitars.com/pdf/Gibson% ... f%20SW.pdf

This is crazy, a sub 6mm fingerboard or one slotted in india, would be unsalable given the lack of full drying in india.

[kiwigeo]

Apart from the possible hassles of shipping a whole guitar into the States my concern is that F&W are attacking this with such vigour that it could scare many of the smaller tonewood dealers that they will just either throw their arms up in the air & close up shop or refuse to deal with anybody outside of the US borders (similar to the shell problem).

If this is indeed the case then youd think someone in the Indian government would be taking a bit of interest in the US authorities actions.

[Nick]

Well it's 10mm thick fingerboard blanks, indian ebony and rosewood, purchased through LMI.

http://berkowitzguitars.com/pdf/Gibson% ... f%20SW.pdf

This is crazy, a sub 6mm fingerboard or one slotted in india, would be unsalable given the lack of full drying in india.

You mean a fingerboard veneer Jeff ! Remember according to the affadavit, anything under 6mm thick is classified as veneer If India has laws pertaining to the 'illegal' sale of sawn plants e.t.c offshore, how come these fingerboards weren't stopped at the Indian border and prevented from leaving the country, they had paperwork (albeit wrongly descripted) the same as the 'merkins'.

[kiwigeo]

Well it's 10mm thick fingerboard blanks, indian ebony and rosewood, purchased through LMI.

http://berkowitzguitars.com/pdf/Gibson% ... f%20SW.pdf

This is crazy, a sub 6mm fingerboard or one slotted in india, would be unsalable given the lack of full drying in india.

You mean a fingerboard veneer Jeff ! Remember according to the affadavit, anything under 6mm thick is classified as veneer If India has laws pertaining to the 'illegal' sale of sawn plants e.t.c offshore, how come these fingerboards weren't stopped at the Indian border and prevented from leaving the country, they had paperwork (albeit wrongly descripted) the same as the 'merkins'.

So we have the US more interested in protecting Indian forests and Indian jobs than the Indian government???

[peter.coombe]

Well the affidavit does indeed describe fingerboard blanks. If US F&W are correct then millions of guitars, mandolins, violins, you name it, are now illegal. Just about all my mandolins are illegal, and my stash of Indian Ebony fingerboards are also illegal. We are all stuffed and India is about to loose a significant export trade. Has all Indian ebony fingerboard blanks been exported using the incorrect tariff code? Ashok, where are you when we need you. This really is a terrible mess, and the more publicity Gibson gets from this the better. I'm now with Kim on this. This crazy madness has to stop. Thankfully Gibson has the resources to defend itself publically and legally.

[kiwigeo]

My tonewood superannuation fund just jumped in value......with any luck Ill be retiring next week

[kiwigeo]

We are all stuffed and India is about to loose a significant export trade. Has all Indian ebony fingerboard blanks been exported using the incorrect tariff code?

I'm sure the Chinese manufacturers will come to India's rescue.....

[peter.coombe]

I'm sure the Chinese manufacturers will come to India's rescue.....

Well maybe, but they are probably also stuffed because they won't be able to export anything to the USA that contains Indian wood.

It is interesting to note that the Lacey Act amendments were introduced to stop illegally logged timber from being imported into the US. This wood was not illegally logged, there is nothing in the affidavit that claims the wood was illegally logged. Also interesting to note, quoted from the US F&W web site -

"The U.S. Fish and Wildlife Service is the premier government agency dedicated to the conservation, protection, and enhancement of fish, wildlife and plants, and their habitats. "

This has nothing to do with conservation of Indian Ebony and Rosewood. It is basically a legal issue. What US F&W are effectively doing is to make a practice that has been going on for 30 odd years (i.e export of Indian Ebony and Rosewood from India with no intervention from Indian authorities), illegal in the USA. It has wide ramifications if they win. I would think that Gibson has very good grounds for escalating this to the highest level in US politics. Then maybe some sanity will return.

[Nick]

"The U.S. Fish and Wildlife Service is the premier government agency dedicated to the conservation, protection, and enhancement of fish, wildlife and plants, and their habitats. "

They're worrying about Indian Timbers that are legally logged but do nothing about the hectares of deforestation of precious eco systems & rainforests going on in the world in order to plant Palm Oil Palms. US Government obviously receives more funding from Palm Oil companies than they do from Gibson

If US F&W are correct then millions of guitars, mandolins, violins, you name it, are now illegal. Just about all my mandolins are illegal, and my stash of Indian Ebony fingerboards are also illegal.

This was my worry Peter, with all this silliness where does it stop? Will you/we eventually have to provide a certificate of pedigree for every single piece of Dark coloured wood included in an instrument and how do you prove that that piece of black looking wood on the front of the neck is infact Diospyros crassiflora & not Diospyros ebenum to a beaurocrat .
For the life of me I cannot see the point of this exercise, whether Indian dark woods have been imported in log form or milled into toothpicks there is still one less full sized tree (plantation grown or otherwise) in India that's been legally cut, the size it's milled to for export is irrelevant surely? If it was illegally milled & exported & was a diminishing species then yes, go Gibson for all they're worth, but to argue because the damn things are cut to a size larger than is stated on the paperwork just seems all a bit crazy and a bit hair triggered to me. Maybe I'm not getting it? It would seem that what the US authorities are really saying is that they don't trust the Indian Authorities when they clear a consignment for export and say that it is all from sustainable sources?
Hopefully sanity will prevail.

[Nick]

And what do F&W intend to do with the confiscated "over thickness veneers"? shipment, burn/destroy them? Now that really would be the crime right there!

[ashparekh]

Dear Luthier Brother,

First Thank you peter for sending me a copy a affidavit. I have seen the copy. Now, as far as my concern goes I have read the indian customs act and books related to description of customs premission. I have seen that it is written over there that Indian Red Sanders and Indian Sandal Wood is not at all permitted to be exportered. There is no mention of Indian Rosewood and Indian Ebony that is it not legal to be exported. I have read that indian customs state that woods exceeding 12mm in any specie is not allowed to be exported. he government considers that to be stumps or logs. The woods are allowed to be exported in semi finished or fully finished and you need to prove the customs that there has been a processing done on the woods that we are getting exported. If you are exporting less than 6mm it is ok but more than that you need to prove it is processed or semi processed like we do for fingerboards as we sand the wood always for exports.

Now, for Gibson case is that lacey act is not applicable in India so what the Indian Government has to do with the same. The US government has to do everything that they have to do because if this was against the Indian Government act then the customs will never allow the woods to get pass the borders. I do not know if the rules and regulations are broken by some exporters in India but when I get material I see to it that we have proper documents like forest pass and other documents which abide the law of Government of India. However, there is illegal cutting done in India but the best thing is to stay with the government as there are lot of auctions of Indian rosewood done in South of India from where we procure our rosewood. One more thing I would like to know that Gibson has not been procuring woods directly from India. The affidavit shows that the woods have been bought from them from LMI so whi is it that they are kept responsible to import woods as they have not been in picture. The ultimate buyer was Gibson but was buying wood from a American source so what is wrong in that I could not understand. There has been a lot of pressure for FSC and Lacey act on Indian exporters but there are small exporters like us who cannot afford to put this huge amount for getting the certification so it is not right for us and each and every time the documentation is so heavy that becomes difficult to put a track of the output of each and every log that you saw. There is definitely a problem I see in future if dealing in USA is in such a manner as exporters will decline shipping to us now.

[peter.coombe]

Thank you. So anything up to 6mm is OK. Anything 6-12mm needs to be semi finished or fully finished. Anything thicker than 12mm is not permitted. My ebony blanks are 12mm or less and are sanded so I'm legal (phew). The Gibson fingerboard blanks are 10mm in thickness, but there is no mention of sanding in the affidavit. That doesn't mean anything, they may have been sanded, in which case Gibson should be off the hook. Let's hope so.

[ashparekh]

well, i think so that they should not face any problems. I have heard CEO Mr.Henry stating that they will definitely procure the woods and their factory that is seized by the government and also said will sue the government for this mishap that they have done to them which i think there should not be problem for him. The simple fact in India is that you need to prove the custom officials that the wood is not a raw material but is a semi finished or a finished products. I also see that it has been said the the ebony is going for violins. I am sure that the ebony that is going for violins is finished products because hardly there are some blanks that are going. We are also shipping a lot of fingerboards which are finished products of ebony violin, viola, cello and bass fingerboards which are exported to different parts of the world and absolutely no problem but ofcourse these are finsihed products and we ca neasily say that milling has been done as these are rounds or ill style.

[peter.coombe]

An interesting new development (from luthiersforum.com), maybe something good will come from this.

This was sent out earlier today:

A Letter From NAMM to President Obama and Members of the U.S. Congress
September 1, 2011

We are writing today on behalf of the music products industry to express deep frustration over a regulation that is impacting music products manufacturers as well as retailers and owners of musical instruments in the U.S. The National Association of Music Merchants (NAMM) is a 110-year-old trade association representing the interests of manufacturers, retailers and distributors of musical instruments. Many of NAMM's nearly 9,000 member companies are being negatively impacted by the Lacey Act, a well-intentioned law, but one with unintended consequences that we feel are damaging to our industry and the economy.

The Lacey Act was first enacted in 1900 and amended most recently in May of 2008 to include criminal liability for importing, owning, transporting or selling plant material that is illegally harvested, the wide range of interpretation possible in the law and lack of regulatory clarity has resulted in great difficulty in compliance. The confusion is due in large part to the law's ambitious scope, including enforcement of the laws from all other countries that are the source of these natural materials

The recent high profile raid (multiple federal agencies with automatic weapons) of Gibson Guitars, a leading NAMM member company in Tennessee, compounded with the slow response on needed guidance for compliance that we have been seeking has created fear and uncertainty for all those involved in the manufacturing, distribution and retailing of instruments and increasingly, artists and owners of musical instruments.

NAMM members care deeply and are committed to the ecologically sustainable use of tone woods for the production of musical instruments.

We understand that long-term success depends upon future availability of these materials to build and sell the iconic instruments that have defined America's popular music traditions. NAMM member products are valued and played around the world and are some of our country's most recognizable exports. Most NAMM members are small businesses employing local artisans and others who are passionate about music and music education. They produce jobs, pay taxes and support their communities.

We cannot state strongly enough the impact that this confusion, uncertainty and threat of criminality are having on our industry even when intentions of due care and compliance are followed and documented. We have concrete ideas on how to improve the law and are ready to work with Members of Congress and federal agencies to make positive changes that will fulfill the intended vision of the Lacey Act and preserve not only the world's forests, but the vital work of U.S. manufacturing and commerce in the music products industry.

Sincerely,

Kevin Cranle

Chairman, NAMM
President, Willis Music Company

Joe Lamond
President and CEO, NAMM

[Nick Payne]

For what seems a fairly balanced reasoned view, see here: http://www.delcamp.us/viewtopic.php?f=1 ... 60#p675395

[Kim]

The issue I have with this is FWS has based the entire case to proceed against Gibson on one agents interpretation of another nations laws and that single point is beyond the scope of enforcing the Lacey Act as doing would assume authority of a foreign nationals determination above that of those who had written the law. Regardless of how Indian laws are written it all comes back to how the Indians themselves interpret 'their' laws and whether or not they allow any exceptions to those laws that 'will' determine if the Gibson/LMI shipment was legal or not.

This is not about CITES and trade restricted species that are covered under an 'international' treaty. In 'that' the US government interpretation would have relevance because they are signatory to that treaty. The Lacey Act however is different, it simply specifies that no international trade laws should be broken. Regardless of what law enforcement agencies in the USA may think, this will always come back to the one single question. Does the 'Indian Government' consider that 'it's' trade laws had been breeched by the Gibson/LMI fretboard shipment?

If Gibson/LMI have a ruling as they claim from the Indian Government Trade Ministry indicating that the products in their consignment are allowable, and that document pre-dates this current consignment as they suggest, then the shipment is 100% legal in they eyes of the Indians and therefore no 'international' law has been breeched 'regardless' of what codes had been written on the forms 'or' how anyone in the USA has interpreted the trade laws the Indian Government has made available on the internet.

Bottom line, if the shipment is legal in the eyes of the Indian Government, the FWS case cannot not stand in court as there has been no breech of the Lacey Act.

http://www.luthiercom.org/phpBB3/viewto ... a&start=25

Cheers

Kim

[peter.coombe]

Nick

I don't think that link is a balanced view at all. In fact he has got most, if not just about everything wrong. Kim is absolutely correct, the wood was legally exported from India as has millions of fingerboard blanks over the last 30 or more years. It has nothing to do with endangered species, nothing is CITES listed. The F&W officer had his own personal interpretation of Indian law and mainly on the basis of that and some paperwork errors launched the raid. There were some paperwork errors, but they were not errors by Gibson. It is a very sad state of affairs when you can be bankrupted or thrown into jail on the basis of one government officer's personal interpretation of foreign law, or by making a mistake with paperwork and given no opportunity to correct the error. In this case the mistake was done by a broker and LMI attempted to fix it (unsuccessfully). The tariff code on the Indian export documents was correct, F&W are just plain wrong on this point. The USA and India have different interpretations of what fingerboard blanks are, and the F&W officer has used the US interpretation. Note that the wood was not actually imported by Gibson, it was imported by LMI and sold to Gibson.

The Madagascar Ebony raid on Gibson is an entirely different matter, and F&W do appear to have a stronger case on this, but it is complicated. I suspect the Indian Ebony raid on Gibson was a fishing exercise to get more evidence so they can nail Gibson on the Madagascar case, but that is my speculation.

Here is a good summary of the situation from Chuck (Duke of Pearl).

" Here’s a summary of the Gibson situation. India has for many years officially ruled that fingerboards (in their blank form) are legal to export, and that official Clarification is something that can't be argued by the U.S. government or anyone else (I have copies of the latest from July 13, 2011). This ruling is nothing new, since India has allowed many millions of fingerboards to be exported for decades with no problem. There are also other factors involved:

1) The U.S. has absolutely no laws prohibiting the use of Indian (or Madagascar!) rosewood and ebony as such, only general laws that require no tribal, state, national or international laws have been violated.

2) None of this has anything at all to do with overharvesting, illegal logging, or any other environmental issues. Veneers, guitars or anything else made of these same Indian woods would have been completely legal.

3) The supposed violations named in Special Agent Rayfield's warrant affidavit concern his private interpretation of Indian law about semi-finished raw materials or component parts. Lacey doesn't allow the U.S. to disagree or argue about another country's regulations, only to enforce their compliance (which in the matter of India were being complied with according to their own written document).

4) Lacey is what's called a "fact-based" as opposed to a "document-based" statute. In other words, simply possessing legitimate-looking paperwork won't protect anyone from confiscation, fines or imprisonment if indeed laws really were broken. It's the same legal principle that has always applied in U.S. mining law, that it's not how technically accurate the filed paperwork description of a claim's boundaries are but how it's actually marked out and posted on the ground.

Several complicating and confusing glitches were made on the paperwork from LMII's Indian ebony shipment, but what counts is whether or not any actual regulations were violated. They certainly don't seem to have been (in the case of India, at least), but it's up to the courts and not us to decide guilt or innocence. Hopefully, they'll toss this one out no matter how foolish it makes Special Agent Rayfield and the USFWS appear.

The Madagascar wood remains problematic since it does involve endangered trees, logging in a national forest, and a questionable state of political unrest in the country at the time the wood was exported with questions about the government's validity as a legitimately recognized power."

I am about to ship a mandola with Indian Ebony fingerboard to the US and getting increasingly nervous about it. Just hope I don't make a mistake with the paperwork or my custiomer will be in deep legal poo.

Peter