Lacey Act - Takin' a Risk, Tryin' Again

[barney 59]

I have no doubt that a laboratory could determine exactly what materials might or might not be present in the construction of an instrument. Experts could also verify whether or not an instrument is an antique. I just doubt that a customs agent is likely to be truly qualified to make those determinations. I know a couple of customs people and neither of them could tell you anything what so ever about musical instruments. One of them is somewhat delusional even on their best day. Some of us are just tourists or traveling musicians, not importers or high rollers and only want to pass freely from one place to another with our personal possessions intact. Very likely if your instrument was confiscated it could be sent to a lab and I would bet there is a good chance that that lab might be in a city far away and they would be working on their timetable not yours. I've waited for lab results when my life was on the line and even in that circumstance they took their bloody time doing it! Some of us have also spent a disproportionate amount of our total wealth on some particular instrument that may in fact be the only one we have or at least the only good one. The cost involved in retrieving an instrument might be quite expensive even in nothing more than lost time(I bet it's more than that!). Our ability to "Prove" anything is pretty sketchy as well, especially on a budget. I can imagine that with the trouble and costs involved that for many,even if they are totally in the right, that the end result would be that they just end up letting it go without contest.
The shame of this is that the result will be that musicians will continue to tour but will leave that completely wonderful holy grail instrument behind that they took a life time to find and is a joy to hear. As an instrument fan as well as music fan if I went to hear someone like say-- Segovia, I'm not only there to hear the musician I want to hear the Hauser as well!

[almeriastrings]

I have no doubt that a laboratory could determine exactly what materials might or might not be present in the construction of an instrument. Experts could also verify whether or not an instrument is an antique. I just doubt that a customs agent is likely to be truly qualified to make those determinations.

Normal, front-line customs agents do not make those determinations (unless everything is so clear cut and self-evident that there really is no doubt at all). They hold items pending examination by those properly qualified. That is who makes the determination. They may (in some cases) be official staff, or often, external, independent experts consulted for the purpose. Either way, they tend to be very well qualified, e.g., museum staff, internationally recognised authorities in a specific area, etc.

[Tommando]

A little dated, but perhaps useful. http://marcypaulson.suite101.com/wha...#ixzz1X6lM9r00. I just have to say from watching USDA regulation enforcement in other areas, they talk a very fair game but can be extremely heavy handed and unconcerned about dialogue and fair notice when they decide to enforce their regulations under a broader law. I was glad to see that NAMM has made an official request to congressmen to review the Lacey Act amendments and regulations and help create specific guidance for all of us. We should all get on board with that in some way.

[dunwell]

Howdy Allen,

Good of you to try again. I'll answer your question about builders as best I can. First a bit of preface. I have been trying to follow this whole Lacey Act and the related mulit-agency enforcement mandates as best I can for about 3/4+ of a year. I've been following, but not participating in, a group that Kath Wingert started, joined the Lacey related group at NAMM and participated in their webinar, read through Chuck's great dissertation on the subject, etc. So I've been trying to go to the sources and understand the details as best I can.

My take away on the whole thing from a small shop point of view is that all it will take is one person in any of the multiple agencies to have a "bad day" in order to ruin my entire business and life. I just can't take that chance, albeit small. I will not do any sales outside of the US of A. Technically anything across the Colorado border may be at risk as well but this is probably a small risk. But, this means that my entire supply of materials that I've gathered over the years is now useless. Fortunately, I heat with wood. I do have paperwork for most all of it, just because I have always done that, but it doesn't go all the way back to the origins of the person who felled a tree or gathered a shell. So it is insufficient from the point of view of the multiple laws.

I am somewhat undecided as to the future. As far as mandolins I can build them by buying all new materials and use no inlay except for USA woods, etc. But even that is problematic in that many suppliers who sell the good wood have no paper trail beyond their shop and are unwilling to provide any sort of statement that their wood is legit by all the laws. Not unreasonable considering the laws.

So the short answer is:
- no sales out of USA
- limited sales of new materials only in the future.
- or just retire from the whole mess

Alan D.

[allenhopkins]

...I was glad to see that NAMM has made an official request to congressmen to review the Lacey Act amendments and regulations and help create specific guidance for all of us. We should all get on board with that in some way.

Let's stay off the legislative politicking tack. Changing laws is for your favorite political blog. I just want help understanding what's out there now.

If Federal agencies want to issue clear guidelines to help us understand the current law, and how it will be enforced, that surely would help. Reviewing current posts, is seems that reactions range from "don't worry much about it" to "I may get out of the business entirely." Which is why I opened the subject again, to see what info is out there and who, if anyone, has had direct experience dealing with restrictions on "endangered" plant and animal products. Evidently there's not a uniform level of either knowledge or concern.

[Stephen Perry]

That's my concern - getting shut down just for shipping a guitar somewhere. Or a mandolin. I have a guitar I just video'd, an Eastman made in China. I doubt Eastman has papers on the fingerboard - which was no doubt exported as a blank - and it has abalone and bone that might colorably be mistaken for the special abalone & ivory. I seriously doubt Eastman has all the papers on every material in the instrument.

I certainly don't have papers on every piece of wood in the shop. And who knows what's in my scrap box. Could be anything. I am a bit concerned, not overwhelmingly, but this is what I do and I don't want it to stop. There's certainly no way I would consider this a clear or focused law. Seems rather overbroad. Also seems impossible to comply with, given the realities of the marketplace.

I'm not reassured reading above.

[barney 59]

[QUOTE=almeriastrings;965602]Normal, front-line customs agents do not make those determinations (unless everything is so clear cut and self-evident that there really is no doubt at all).

That was my point,they ARE the ones that decide that something warrants further investigation. They cause the inconvenience for the traveler. Custom agent doesn't know or isn't sure so calls on an expert who is probably not in the room and your instrument is gone. Your booked on a flight to the next leg of your journey to a concert date or your Grandpa's 100th birthday party and expected home in your own country on a particular date. As end users who has paperwork? Of the 15 million guitar players in the US alone how many do you think are totally unaware that this is even going on or have possibly never given a thought as to what their instrument is made of. "Don't know,it was my Dad's!" Martin is one of only a handful of manufacturers that has kept verifiable records. Most didn't and dating those instruments is sometimes impossible to nail down. I own a Brazilian guitar that probably was built pre ban by a custom builder that only built a couple hundred guitars. He had his own way of numbering them.He is no longer alive and so far I have found no one that has the slightest clue what those numbers mean. It is quite possible that I am the best authority on these guitars having tracked down maybe twenty of them and made records, but I still haven't come up with a pattern. I know of one that recently made it to Holland,who was the expert for that?
In my business there are rules and permits and engineer's stamps that are necessary and I can whine about them but I know going in that it is part of the game and I go through the process. The end user isn't involved and doesn't need to know that any of this took place or what it's made of, they just get the finished product and no one is ever coming to tell them that they can't have it or use it. If I was a lumber importer/exporter then I would also have to go through a similar process as part of the business, manufacturers need to know the rules and would purchase their materials and there should be no problems from then on for the end user. Most small shop builders get a great deal of their materials piece meal and privately, documentation is probably impossible. I guess that a small shop builder that happens to be sitting on a stash of Brazilian could put a "Don't even think about carrying this out of the country." label inside.

[JeffD]

No. Absolutely not.

CITES is very clear. You cannot have anything confiscated on "suspicion". It can be put on hold, temporarily, while checked, but unless there is a specific violation there is no offence/offense and it will be returned. .

But it can be held. And by held do we mean an extra hour or two in customs, or do we mean impounded until they get it inspected and it all gets sorted out in several weeks or months or "shudder" longer?

I gathered from the FB article the latter can be more likely assumed. Seeing all those instruments impounded pending inspection gave me the willies. But perhaps I am being pessimistic.

[swampstomper]

Some interesting information from the enforcing agency APHIS, scroll down to the FAQ and open the PDF. Especially relevant to individual travelling musicians (Allan):

"9. Is there a de minimis exception?
The statute does not provide for any de minimis exceptions, either to the substantive prohibitions or to the declaration requirement. However, the relative amount of an item at issue may be a factor in enforcement as it may go to the issue of knowledge and/or due care. For example, violations of the declaration requirements must be knowing before there is any criminal violation under the statute; there is no due care misdemeanor for violation of the declaration requirement."

So if someone is travelling with a single instrument and can not document every scrap of wood, it is still a small amount of material, relatively speaking, which is brought out in another point:

"12. Does the declaration requirement apply to all types of entries?
At present, we will be enforcing the declaration requirement for formal entries (i.e., most commercial shipments). At this time, we are not enforcing the declaration requirement for informal entries (i.e., most personal shipments), personal importations, or mail, transportation and exportation entries, in- transit movements..."

which seems to exclude musicians in transit via the USA (Ireland to Mexico for example), also a hand-carried instrument or accompanied baggage would seem to be "most personal shipments".

and then

"As with the different product types, we would issue a Federal Register notice before initiating any enforcement regarding such imports."

which implies to my non-expert eye that indeed the feds need to make a clear statement in their procedures (via the Federal Register) before they can begin enforcement.

However it's unclear to me if this just means they won't go after you for not declaring properly, or for the item itself. In the standard US customs declaration form for personal travellers it states clearly that failure to *declare* is a violation, independently on the decision about a particular import. But that is for customs duty, Lacey Act is for allowing import at all.

Hope this helps... a bit...??

[peter.coombe]

George Gruhn said in the NPR interview, that he was worried about losing all his overseas business, which amounted, by his estimate, to 40% of his traffic.

This is why I raised the issue, apart from the kerfuffle about Gibson. Could be 'way more far-reaching implications, depending on how CITES and the amended Lacey Act are enforced

The latest I have heard is that George has stopped all international trade in vintage instruments because it is impossible too comply. It is impossible to know the country of harvest or the amount of individual pieces of wood in vintage instruments. Also, all exports of small quantities of shell has stopped becasue of the F&W fees. I now can't get shell materials in any from the USA any more. So yes it certainly does have far reaching implications.

As has already been said, CITES is relatively straight foreward. If the instrument contains material that is listed in Cites Appendix 1, then you need the appropriate CITES documentation if you are importing or exporting. End of story. Lacey is a different matter, is far reaching, and at the moment is practically unworkable as has been shown by the problems with shell imports and exports. The shellfish are not endangered, and are primarily harvested for food, yet it costs several hundred dollars in fees to import a few grams of shell material worth just a few dollars. This has lead to a complete stop of processed shell exports from the US. Commercial transactions of musical instruments containing shell also require an import/export permit and inspection fees. There is a legal definition of "commercial". Imports and exports of instruments containing shell must go through designated ports. Try and import or export a musical instrument containing shell inlay without the import/export permit and you risk confiscation and being charged with illegal smuggling of shell, irregardless the amount involved. For wooden materials if the item is worth less than $2500 for exports ($2000 for imports) then they can enter "informally" without documentation. If worth more than that then they must enter "formally" via a designatedf port of entry with the appropriate F&W documentation filled out. For musical instruments the value is the vlaue of the instrument, not the value of the wood. The F&W forms for wood require the component name, scientific name, the amount of material, and the country of harvest. The important thing is the importer/exporter needs to demonstrate "due dilligence" that the wood was not illegally logged. Countries of harvest such as Madagascar or Indonesia are going to iommediately raise a red flag.

I have just gone through this process for mandola destined for the USA. My customer needed to procure a F&W import/export permit and fill out the F&W forms for wood and shell before I could send the mandola. At my end it was at least 3-4 hours of work to fill out the paperwork since I needed to send him the information so he could fill out the forms. I hate this with a passion. These laws are supposed to stop ILLEGAL imports and exports, and I fully support that. However, when they stop LEGAL imports and exports, then there is a problem with the law or the way the law is being enforced. It has pretty much killed all my sales to the USA stone dead. Nobody is prepared to put up with the hassle and the risk.

Stephen, if your instruments are worth less than $2500 and contain no shell then you should be ok. If they have any shell inlay, you will need a F&W import/export permit and you will need to fill out the F&W forms in order to be legal. If not you are risking confiscation and fines.

[Mark Turner]

Now, all you rugged libertarians -- and tree-hugging environmentalists -- STAY OUT!

<Removed by moderator. If you don't have anything to add to the discussion it's best to simply read>

[almeriastrings]

I totally agree with Peter, above. CITES is important legislation, and if you had ever had to deal with wildlife traffickers in ivory, tiger parts, endangered turtles, etc., you would probably agree it is needed. The 'new' Lacey Act seems to me to be very badly thought out, on the other hand. It places a gigantic administrative burden on (clearly) totally innocent parties, and it is next-to impossible to comply with: you cannot possibly know the detailed origins of every tiny component of even non-endangered materials, and you cannot possibly know the minor local laws of every country or "tribe" on the planet. It is extremely vague - yet incredibly draconian and unyielding. Even attempted compliance is time-consuming and costly (and you still cannot be sure you have it right and are safe). That is the hallmark of a very bad piece of legislation indeed, in my personal opinion.

As for customs and suspected items. The usual thing these days (in many places) if an agent suspects something is to ask the traveller to wait in the first instance while a relevant ID database is consulted, or photos of the item are emailed to someone with experience. Many airports have specialised CITES teams, for example. They are customs officers and (in the US) USFW inspectors who work all day with issues like this. They are normally capable of making a pretty reliable ID. If on this first exam there is still reason to believe there is a violation, the item will be formally held pending more detailed enquiries. If not, the item is returned then and there. The object is to detect contraband items, not to cause delay and inconvenience just for the heck of it.

Some things do get through that shouldn't, and sometimes innocent people get stopped and questioned. It is not infallible. The worldwide illegal trade in endangered species is huge, however, and often the same people involved in that are also involved in other highly illegal activities, so catching them is a priority.

[Rick Proctor]

It seems that everyone is confused over the Lacy act. In a Nashville newspaper article concerning Gibson, George Gruhn made the following comments:

“People are very confused,” said George Gruhn, a Nashville-based luthier, or guitar craftsman, whose global business entails shipping vintage guitars, some of which are made from woods that their owners might not be able to properly identify as the law now requires.

“I don’t have anything against environmental protections, but obviously the law never intended to cut out legitimate trade or travel. There is uncertainty about what the federal government expects,” Gruhn said.

[Stephen Perry]

This is indeed disturbing. I am running a risky test by sending a guitar (no shell) with an ebony fingerboard to Canada from the US. I haven't had a problem before. It's under $2500. Not sure where that requirement comes from.

Certainly I'm not going to import commercial quantities of instruments any more. No way I could handle having a $12,000 shipment stalled. That would be impossible for me to survive. I would take the risk on very small mail shipments. I've gotten many batches of 4 violins delivered with no comment at all, but the hassle for 4 guitars shipped commercially was amazing, what with brokers and all that.

I have written my legislators with a brief explanation and asked them to look into it. Most disturbing.

[TonyP]

Everything in all the posts point to inconsistencies, all due to interpretation by the particular enforcer. It would seem the only way for a clarification is some kind of business connected association to lobby Congress for definitive guidelines. Like NAMM maybe?

How you expect those of us who are just subject to the overly convoluted law and inconsistent enforcement, to make absolute sense of it is beyond me. And like Barney pointed out, you can't get testing done on a whim so there's no solace in that avenue. I could see how this would totally clog a already woefully inadequate system.

I would be surprised if you even got an official to do our Cafe 10 Questions, if it would translate to how it's being carried out. But it sure would be a good read, and use of our collective power as consumers and manufacturers.

[allenhopkins]

A quick response to the deleted post above:
I'm quite politically active myself, and closer to tree-hugger than a "rugged libertarian." But I really am trying to keep the politics out of this thread, so we can continue a discussion that has elicited so much useful information! We all know the rules here, and we can express all kinds of frustration, support, opposition, skepticism etc. without getting political or ideological.

When and if any of us decides to "go political" and express his/her views about the overall policy perspective embodied in the Lacey Act, CITES etc. -- well, that's when this thread will get closed. Don't want that. There's a gigundous universe of political websites where we can fulminate to our hearts' content, but this ain't one of them. I would say that asking the government for clarification of the rules, is not a politically ideological act, but going much past that, is treading into the minefield.

[TonyP]

Believe it or not, I was trying desperately to not be political when I got edited last time. But it does seem like we need a higher power here to help interpret what's going on with our corner of the world. So how to avoid that minefield when everything leads that direction?

Mr. Perry has done a good thing in making inquiries for clarification, and I would hope others with power can do the same. We've had some pretty big folks interviewed here, like Henry J of Gibson. I wonder who would be a musician or music fan in the halls of power that we could appeal to?

[tkdboyd]

Risky reply...but here it goes: The Late Senator Byrd would have been great to have approached since he would have been sympathetic considering his musical affiliations. Is there anyone else in Congress that would be as sympathetic to our collective concerns?

As far as I know, none of my congresspersons are musicians.

[PJ Doland]

If I were Peter Mix, Ransong, CA, or Luis & Clark I would be all over using this as a marketing opportunity. (Although I guess some of those makers use ebony, which would be easy enough to replace.)

[JeffD]

So back to the "instrument passport" idea. It would be good to know what mandolin "travelling papers" I would need to be able to carry my mandolin across a boarder and back again.

First: lets say I have a mandolin I am not sure whether or not it has any CITES or Lacey materials. How would one go about finding out?

Now, lets say the mandolin contains no CITES or Lacey materials. How would I go about documenting that? The goal being that if a question arises my documentation will be sufficient to prevent the instrument from being impounded for six months until it can be inspected.

(Always keep in mind compliance is not enough. Proof of compliance is what is called for.)

Now, lets say the mandolin does contain the materials in question, but they were put into the mandolin before the acts came into existence, how would I document that to the satisfaction of the customs inspector.

and so on.

A list and/or procedure so that we can put together our mandolin's travelling papers.

[mandroid]

Any places where the actual text of the 2 statutes in question are available ,
short of physically visiting the library of congress? or the FTC offices..

Have they digitized much of precedent setting laws, for the non lawyer to read??

perhaps printing out the statute and highlighting the applicable parts,
and then having your own set of documents supporting the 'Provenance' [?]
of your particular instrument .

might be snowblowing TMI at the customs guy who may take you aside.

[swampstomper]

I wonder if those of us who have instruments we bought new, fairly recently, from C F Martin (and perhaps some others), if we travel with the original bill of sale and the catalog instrument description, would have no problems. Because, I hope and expect Martin would stand behind their product description (which does include all the materials) and their warranty/bill of sale (linked to the serial number). Their manufacturing processes and materials aquisition records should be able to prove provenance.

With pre-1992 rosewood etc. (as mentioned above in CITES) indeed one would need to get the export/import permits.

I've travelled several times Europe/US and reverse with my Czech-made mandolins (Prucha and Lebeda), never stopped but always ready with the aforementioned bill of sale and product description.

[Tommando]

From the source.

[MikeEdgerton]

Great info Tom. I'll note that the last page of the pdf has an e-mail to address questions regarding the Lacey Act to. Those with unanswered questions might consider sending them a message.

[barney 59]

One good thing is that "most" mandolins are made out of maple,spruce(or some other soft wood) and mostly it seems ebony or East Indian Rosewood for the fretboard. None of these seem to be listed at present as appendix l no no's. Gobs of abalone might present a snag but none of it that is used seems to be the "white" abalone that is protected. Most of that silvery multi colored ebony that is most common is going to be mistaken for white. A mandolin built with more exotic materials .....who knows. <Text removed by Moderator to keep the thread active> If you happen to have a guitar, and I am guilty on all counts, that has Brazilian or Ivory or real tortoise shell and maybe even Honduran mahogany now( I'd like to get a definitive answer to that) antique or otherwise you should be more nervous..