Official Luthiers Forum!

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!)

This is so troublesome to a small builder.

I'm flat in the middle of a plain-jane guitar going to Belgium. The customer has purchased guitars from the US before and has seen no problem till now. Will he have to assist in obtaining paperwork from his end?
The supplier of my mahogany says "no problem, you don't have to document anything, it's a finished product."
It is like pulling teeth to get good information.

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https://www.facebook.com/profile.php?id=100008907949110

But my question is: has anyone been prosecuted in the US for buying or selling brazilian (wood or guitars) to other US residents since 2008?

Brazilian is all over eBay.. Seems like you can Buy it/Sell it (so far) without any problems.. I realize the law is the law, but it doesn't seem like anyone out there cares (if it's inside the US).. including the Gub-Ment..

I certainly DO care... as I don't want myself or any of you to get busted for the brazilian that we have or are using.. It just seems like a big miss-match between the law on paper and what's being enforced (like I said, inside the US... not internationally, that's a whole different can of worms)..

Peter Z

Safest bet would be to smuggle all your BRW out of the US and in to the hands of a Canadian ...

* pointing to self & looking all innocent-like *

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If trees could scream, would we be so cavalier about cutting them down? We might, if they screamed all the time, for no good reason. - Jack Handey

As David points out, there have been actions to enforce the Lacey Act since 2008 (there were more prior to 2008 no doubt). However, there have been very few enforcement actions that appear to have been fully adjudicated (or fully "prosecuted" if you will), before 2008 or since. Most enforcement actions result in forfeiture of the items in question. Section 3374(a) of the Lacey Act, in part states: "All . . . plants imported, exported, transported, sold, received, acquired, or purchased contrary to the provisions of section 3372 of this title [(section 3372 is the section generally regulating and prohibiting the purchase, sale, use, etc. of protected species)] . . or any regulation issued pursuant thereto, shall be subject to forfeiture to the United States notwithstanding any culpability requirements for civil penalty assessment or criminal prosecution . . ."

Regardless of whether the enforcement action resulting in an forfeiture is legitimate, attempting to reclaim the forfeited property will generally require more money and/or effort than the property is worth. So, the agency sporadically enforces the regulations, and there is little intensive or ability to put up much of a fight.

A search of both Federal and state cases dealing with this issue reveals only one case relatively on point, though the case involved a forfeiture directly under the Convention of International Trade in Endangered Species of Wild Fauna and Flora (i.e., CITES) rather than under the Lacey Act, but the court looks to other case law discussing the Lacey Act to form its opinion. The case, United States v. 1866.75 Board Feet and 11 Doors and Casings, More or Less, of Dipteryx Panamensis Imported from Nicaragua, 587 F. Supp. 2d 740 (E.D. Va. 2008), involved the forfeiture of several tons of Dipteryx Panamensis, a CITIES Appendix III listed species, a U.S. citizen had purchased without a required Certificate of Origin. The court fully upheld the forfeiture.

Under 7 C.F.R. §§ 356.1 and 356.2, following as seizure, the retail value of the property must be ascertained. If the property is valued a less than $10,000 (read - most property we care about), the property must be forfeited administratively. 7 C.F.R. §§ 356.3-356.4. This means if you want your instrument back, you have twenty days from the date of the "first publication of the notice of seizure" to "file with the appropriate customs officer a claim stating [your] interest therein," and contest the forfeiture, plus provide a bond to the United States "in the penal sum of $5,000 or 10 percent of the value of the claimed property, whichever is lower, but not less than $250, with sureties to be approved by" the customs officer handling your case. 19 U.S.C. § 1608. If you properly contest the forfeiture, the matter will be assigned to the relevant United States attorney for the district in which the seizure was made so that he or she may start a formal condemnation action.

So the economic reality of the situation is quite bleak for builders.

Disclaimer: The information provided in this post is for your entertainment only and should not be relied upon in any other way. My review of the law and the opinions stated above are my own and reflect a quite cursory review of the law in this very confusing area.

Aaron

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Aaron Craig

Aaron,

You say the situation is quite bleak for builders... why? One case on point... and that dealt with importation.. Seems like if a small builder is selling his wares to people in the same country that he/she resides - there is basically no issue - at least not yet.

Hell, I wish I had more Brazilian.. then I (might) have something to worry about..

Peter Z

I meant that if you are one of the unlucky builders subject to a forfeiture, then the situation is quite bleak because of the cost associated with fighting the action. Could have been more clear on this point, but I was tired of typing and it was lunch time.

"One case on point" . . . true, but that number is highly misleading and easily misinterpreted. The number of forfeitures that have occurred could be much, much higher. No way to know for certain without receiving detailed information of agency enforcement actions from the authorities regulating protected species. Most likely, the lack of case law on point supports the notion that trying to litigate a forfeiture action in an attempt to reclaim the property seized makes little economical sense.

Lastly, the regulations we have been discussing involve federal law. Federal authorities can regulate items in the stream of interstate commerce. Pretty hard to claim any given board of Brazilian Rosewood didn't cross a boarder. So . . . the location of possession or whether the buyer and seller live in the same state is, from a technical standpoint, irrelevant. That said, the reality is most items of intrastate commerce will never be seen by a customs agent. Likewise, it is unlikely that many items that float in interstate commerce within the territorial U.S. will be inspected by a customs agent. So, enforcement, when it actually occurs, will generally occur when an item is being transported across U.S. boarders.

My previous disclaimer is incorporated here by reference.

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Aaron Craig

I have tried to stay up to date on this and have read the relevant portions of the Act, and discussed it with a couple of lawyers. I think you are misreading it. At the border, if you are an importer, undocumented wood products (and in the case of BRW, without CITES permits) can be treated as having been unlawfully harvested (or shipped, taxed, etc.) and confiscated, because import without a complete declaration is itself illegal. For transactions and shipping within the US, there is no requirement of documentation or assumption that undocumented wood was illegally harvested. Nor are there any inspections within the US of shipped guitars or wood for Lacey act violations. So, yes, if the wood was illegally harvested, then you violate the ACT by shipping, selling, buying, etc. within the US (criminally, only if you knew or with due care should have known of it being illegal). But no to the assumption that it is treated as illegally harvested without a chain of custody going back pre 1992. That is only at the international border where a declaration is required. And Lacey declarations are not being required at the border for personal property accompanied by the owner (it still has to be legal wood, but you don't need to fill out the Lacey form).

John Thomas's piece in the Fretboard Journal remains the best source on guitars and restricted species.

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Howard Klepper
http://www.klepperguitars.com

When all else fails, clean the shop.

Its pretty simple Filippo .. no CITES paperwork .. dont ship it.

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

FYI....

Here is link to an interesting publication about BRW.
http://www.fpl.fs.fed.us/documnts/fplrp/fpl_rp632.pdf

The publication defines the legal method the USDA can use to separate Brazilian Rosewood from Amazon Rosewood. In the document they state that they developed this procedure because "from time to time" the USDA lab is requested to identify the species because of importation activities. Unfortunately the method they will use to determine the species requires a destructive sample.

That means they would cut a sample out of a guitar to check the density. All at the whim of the inspecting officer. They didn't develop this procedure to not use it.

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Lance Peck

So, let's let Brazillian Rosewood die on the vine.
Move on.
Use other woods.
I am sick of the "Braz rosewood" thing.
Use wood that sounds good!
I saw coco on the list.
I don't know what my point was, but,
build a guitar out of what you have laying around!
You might be surprised!
AaaaaaHHHHHHHHHHHHHHH!!!!!!!!!!!
Walnut, maple, cherry, sycamore.Ha!
Go for it.

I doubt if they have had the need to cut up a guitar. If they were to seize an instrument the only reason to test would be for prosecution or if the owner filed for the return of the property. I think their normal procedure when they find a non commercial illegal import is to simply confiscate the item. If the owner does not press the issue it simply goes away but if the owner were to file a challenge then the Feds would likely defend their position of confiscation and do what ever it takes to not loose.
Would someone that had a guitar confiscated go to the expense to hire an attorney to file the complicated paperwork? Probably not after hearing the advice of the attorney.

The ultimate goal of CITES and the Lacey Act is to stop commercial harvest of natural products. The only way they will ever achieve this is to make life miserable for the end users. They are good at what they do!

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Lance Peck

Thanks for this hint, Howard.

I found this on the Fretboard Journal website:
You can read the article here.

Great reading!

In regards to Brazilian Rosewood, my understanding is that ever since it went CITES Appendix I you needed appropriate CITES documentation to legally move an instrument with any Brazilian Rosewood content across International borders. Having the paperwork to prove the wood was pre ban is not sufficient, you need to use this documentary evidence to get the appropriate CITES paperwork. I've seen these passports as Terence Tan (Pakhan here) had some and you technically needed them for each part of the guitar where Braz was used - eg back, sides, headstock veneer, rosette etc etc. The fact that customs and other border agencies weren't maybe as dilligent or interested in upholding these agreements in the past as they seem to be now is neither here nor there - legally and technically they should have done the same thing from 1992 to the present day. It seems to me that all that's changed is the focus and implementation - ie you were lucky it didn't happen all the time. If the customs suspect an item is illegal in CITES terms they can keep it and get it tested at their leisure and can indeed have the guitar wood appropriately "sampled" for testing. I must say it has amazed me over the years to see the blase nature that US builders and manufactures have assumed in exporting and importing instruments made with Brazilian Rosewood - any of these instruments without valid CITES paperwork should legally have been ash and cinders at the border post if the "guardians" were doing their jobs properly.

The Lacey act is another kettle of "wildlife" that seems to have as much political direction as anything else in it's current "re-birth" (mind you the whole CITES thing is also pretty political). For example Madagascan Rosewood isn't CITES Appendix I listed (although given the destruction of the Madagascan rainforests to get it some would argue that it shoud be there with Brazilian Rosewood) or even Appendix II or III but has been deemed "politically" to be there under the Lacey act. CITES has been poorly policed but has a certain logical structure, the Lacey act just seems an ill thought out mess.

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Dave White
De Faoite Stringed Instruments
". . . the one thing a machine just can't do is give you character and personalities and sometimes that comes with flaws, but it always comes with humanity" Monty Don talking about hand weaving, "Mastercrafts", Weaving, BBC March 2010

Fillippo,

I have been amazed as the CITES International Treaty has been well discussed and understood in guitar making circles, and the position with regards to Brazilian Rosewood has been clear and unchanged since it became Appendix I in 1992. It's also pretty easy to understand - just go to the CITES websites. I suppose I'm generally law abiding and risk averse and am surprised by some people's willingness to play a form of Russian Roulette and then claim it's unfair when one of the bullets goes off. In truth I was also amazed (although not surprised) at the lax enforcement by border agencies over the years until now - I'll try to temper my cynical side and say that their increased interest and enforcement is in keeping with the conservation intent of the original treaty.

As I say the Lacey Act is a totally different animal where it appears the authourities decide what the law is by their interpretation rather than a clear unequivical set of rules that "gamblers" can choose to play - or not.

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Dave White
De Faoite Stringed Instruments
". . . the one thing a machine just can't do is give you character and personalities and sometimes that comes with flaws, but it always comes with humanity" Monty Don talking about hand weaving, "Mastercrafts", Weaving, BBC March 2010