Official Luthiers Forum!

We've had discussions on this board before about this. Specifically the Lacey Act. The scope of the language of the Act is like one of the 16 inch guns onboard the USS Iowa. It's so broad it's interpretation can pretty much meander anywhere it wants. AND I'll bet this ACT hasn't been used enough or challenged enough (something that happens to be a crucial path to good law making)...which by extension means it hasn't been interpreted to it's fullest extent and capacity.

Imagine FWS showing up at Healdsburg, the likelihood of which is nil I think. Lots of good honest builders that have had Brazilian in their inventory for countless years (Brazilian that was harvested lawfully) would be in hot water because of 'gill net', unfocused, legalese.

Good idea....bad implementation. Not enough effort was given to the obvious problem of existing stocks.

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There is no difference between the man that thinks he can....and the man that thinks he cannot.

David, is there new info here that I'm missing?

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http://www.chassonguitars.com

Thanks David.. but I dont see anything here I didnt already know ...

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Tony Karol
www.karol-guitars.com
"let my passion .. fulfill yours"

In 2008, when the amendment to the Lacey Act was being drafted, they understood that there were legacy material issues they'd have to deal with, but no one could agree on how to resolve the legacy issue without having a hole in the bill large enough to drive a Peterbilt through. So they didn't bother, expecting that Fish and Wildlife would deal with it on the regulatory end when the actual rules governing the provisions would be drafted. This guide for instruments was supposed to deal with the legacy issue, or at least my contacts through the Senate and to Fish and Wildlife had indicated as much. This document was released quietly. There is no information on dealing with legacy materials. My read on this is pretty clear: if you don't have documentation proving a chain of custody to indicate that the wood was harvested prior to 1992 when it was listed as CITES Appendix I, the material is illegal. Period. I think if they intended to deal with the legacy issues, they would have. I'm betting no one could agree, so they left the legislation as written.

I don't know that I'd characterize the Act itself as overly broad. I'd characterize it as poorly conceived because they didn't take the time to address things they way they needed to. They intended to put provisions into place to stop traffic in illegally harvested materials, as well as endangered species. What's interesting about this particular document is that it doesn't give guidelines on Lacey whatsoever, it only addresses CITES.

Anyone think this doesn't have teeth should consider the equivalent in land use legislation such as declaring areas as protected because they are wetlands and not permitting owners to develop their property.

I'll know more in a few weeks, hopefully. Too soon to know what they were trying to do with this document, but it doesn't really clarify anything other than to say that Brazilian Rosewood is illegal to use.

From the document:

I'm neither a lawyer nor a professional builder, but I wonder if there is some sort of organization like ASIA could approach the gov't agencies for a full interpretation? What are makers like Martin, Gibson and Taylor doing? Aren't they still building some instruments with Brazilian?

This portion of the article doesn't mean that "it is now unlawful to . . . sell . . . or purchase in interstate or foreign commerce" Brazilian Rosewood. To say that ignores the phrases "with some limited exceptions" and (most importantly) "any plant . . . taken or traded in violation of the laws of the U.S., a State, or an Indian Tribe . . . "

As has been mentioned, preban BR is still a commodity that can be traded and turned into guitars or whatever because it was not "taken or traded in violation of the laws." The relevant laws and regulations have not been amended lately, and no article, regardless of the author, can affect the enforcement or alter the meaning of currently existing relevant laws and regulations on the issue (it would take an amendment or some other form of superseding legislation or treaty, etc. for this to happen).

Just wish I was worthy of building with some Brazilian (or could afford it for that matter).

Edit: I don't mean to say that all Brazilian Rosewood on the market IS legal or that guitars made with post-ban BR are legal to sell. No doubt there is a good deal of illicit wood that finds its way to the market, but that is a whole different can of worms.

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Aaron Craig

Jac, I beg to differ. Lacey was the amended law, amended in a 2008 Omnibus Farm Bill, and went into effect in April 2010. This is exactly what Lacey says. Lacey was amended to allow the regulation of all plants and plant products, and to regulate their importation and sale by applying all laws foreign and domestic such that you are responsible for knowing that they were legally harvested and transported from the forest to your doorstep -- every step of the way, every stop, a full chain of custody. And when it comes to Brazilian (or any other Appendix I material) you have to be able to have documentation to prove the wood was harvested prior to 1992 for Brazilian when CITES listed it in Appendix I. If you don't have documentation it is assumed it is in violation. Lacey states that if it gets held they can confiscate it and fine you. That's what Lacey says.

That brings another question: will we have to prove that each part of any given guitar crossing the border is NOT made of any specie listed in the Apendix I of CITES?

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Alain Moisan
Former full time builder of Acoustics, Classicals and Flamencos.
(Now building just for fun!)

It's funny how they protect trees from other countries, but let all these invasive beetles and fish in the country that distroy are own natural resourses. They are all a bunch of crooks.

Alain, if you are shipping a guitar into or out of the US, you need a license, a permit, a declaration indicating the genus, species and country of origin of every piece of wildlife in the instrument, pearl included. You have to get permission ahead of time and find out through which port it must be shipped. I don't know all of the details. I have a guitar going to Australia in two weeks and I've just begun to fill out the paper work. I also contacted the Aussies to find out what I need for their end. It's going to be a half a day of filling out paper work and coordinating with Fish and Wildlife because the instrument will get inspected on export from the States. And this guitar is just sapele, German spruce with ebony appointments.

David touches on the 'burden of proof' concept....and here is where I think the law is flawed, interpretation going every which way. Simple possession is the offense? A criminal offense? This isn't a kilo of blow!

The burden of proof in a criminal proceeding (it's reasonable to think these cases could end up in front of a judge) does not rest with the accused (or it's not supposed to). HOWEVER, I wonder if in this instance, NOT being able to prove a chain of custody would give rise to a criminal charge? How would that stand legal muster?

As an aside - NOT dealing with legacy material, which I assume is material that has been in the country for a long time (prior to CITES listing) creates an additional set of legal questions and problems. They should have taken the time to deal with this issue. This type of legislating drives me nuts. I understand the need to protect but please do no collateral damage in the process.

Edit: What kind of possession? Simple possession or possession with the intent to conduct commerce?

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There is no difference between the man that thinks he can....and the man that thinks he cannot.

Build with locally harvested woods.
Some day all of the "exotics" will be outawed.

Nothing in your response contradicts what I said. I suppose I could have added the following caveat: "Of course, under regulations that have been in effect since 2008, documentation proving you are holding or selling preban Brazilian Rosewood, in whatever form, is necessary to ensure you are safe from any regulatory penalty or other form of prosecution."

However, your response to my post contradicts both the title of your thread and your prior posts. You really seem to be agreeing with the statement that preban Brazilian can be bought, sold, and turned in to whatever, you just add that proper documentation is necessary (a point that I agree with, but a point that has been discussed here often and one most have known for some time now). Maybe what you are trying to say is that it is next to impossible to comply with the regulatory framework currently in place. I doubt many here would disagree with such sentiment. But your prior posts seemed to indicate that this article authoritatively stated buying, selling, building, etc. . . with Brazilian was now entirely illegal (i.e., "the party's over").

Aaron

p.s. I mean no disrespect, and I don't wish to start a fight. But this issue is already very murky, and further mud is undesirable.

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Aaron Craig

Aaron, I don't believe there is any contradiction in my posts. Having been in the business for close to thirty years, I've never seen CITES documentation. I've never seen any for any of the brazilian that was being sold "legally" within the past ten years that was imported during that time. Since FWS at this juncture has chosen not to deal with legacy materials, the net effect is to make them illegal. There is some Brazilian being circulated, allegedly brought in with CITES documentation, but my understanding from wood buyers at one of the oldest guitar companies is that at least one of them is known to be forging CITES paperwork. How would you interpret the following statement from FWS in their document?



Read that last clause: "...and products made from such wood is prohibited." There's no wiggle room here. They are stating flat out that materials harvested post 1992 are illegal and products made there from.

Maybe it was legal to harvest .. but how much of it has the proper paperwork ??? If it had the paperwork, could you tell if it was authentic or forged ??? How many customs or FWS service people could ??? How many could identify BRW from coco from amazon from whatever ??? How many can tell south african abalone (the banned stuff) from MOP from red ab from awabi ????

Read the link from Bob Cefalu's monthly letter to the article in Fretboard Journal - guitar shops around the world that buy American made guitars with shell in them are having boatloads of issues sending them back for warranty work. They are getting stopped and confiscated at the US border for lack of paperwork .. and even then, it doesnt guarantee that it will get thru

Therein lies the a big part of the problem .. and they have the right to confiscate on the spot.

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Tony Karol
www.karol-guitars.com
"let my passion .. fulfill yours"

Thanks for the precisions David.

That is one major issue we have here. I know for my part that I am not in a situation where I can supply all the requested information regarding all woods on my guitars. I'm going to have to check with my local lumber store but I strongly doubt they will be able to help me out.

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Alain Moisan
Former full time builder of Acoustics, Classicals and Flamencos.
(Now building just for fun!)

Even with paperwork, you can't prove that the paperwork is for that piece of wood. It doesn't have a fingerprint. So who's to say that a piece of paperwork can't be used for many guitars over and over. One large stack of wood has only one piece of paperwork anyway. What Then? The big factories probably buy wood in such quanity that they only have one piece of paperwork for thousands of guitars anyway. The countries don't care about the rare trees, they just want more of your money.They let the ash borer kill all the ash trees in my state without spending the money to do something about it.

Here is an analysis of the Lacey Act by one of DC's most venerable law firms, Akin, Gump, Strauss, Hauer & Feld (Bob Strauss and Vernon Jordan are both partners):

http://www.akingump.com/communicationcenter/newsalertdetail.aspx?pub=2445

Please note the first paragraph under Criminal and Civil Penalties for Violations of the Lacey Act:


If anyone here has any doubt about how the legal community views the amendments, then this analysis should make it clear.

I'm curious.. has anyone since 2008 been prosecuted for buying, selling or transporting undocumented Brazilian WITHIN the USA?

Peter Z

Pretty much everything I found on Google about the Lacey Act seem to agree with David.

I'm in Canada and most of my customers are from around here, but if I were in the US, I'd be afraid. The importance of the fines mentioned in all documentations is overwhelming. They could close you out in a blink.

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Alain Moisan
Former full time builder of Acoustics, Classicals and Flamencos.
(Now building just for fun!)

Yes, but not Brazilian that I'm aware of, and it was for importing. Gibson Guitars was raided in the fall of 2009, but it was madagascar ebony. A report this fall indicated that indictments would be forthcoming.

http://www.nashvillepost.com/news/2009/11/17/gibson_guitars_raided_by_fbi

http://business.nashvillepost.com/2010/08/12/what-the-feds-found-at-gibson/

I can't seem to find the link for the update for some reason.

... But nothing related to builders in the US selling to customers in the US? or Builders in the US buying/selling Brazilian that is already in the US?

Thanks, Peter Z

From a US maker to a US customer, you would still fall in the "Transporting, selling, receiving, acquiring or purchasing illegally sourced wood". Keep in mind that a wood is going to be considered illegal simply by missing the proper documentation proving it's legal. Unless I misunderstood...

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Alain Moisan
Former full time builder of Acoustics, Classicals and Flamencos.
(Now building just for fun!)