Official Luthiers Forum!

NO!
Maybe that's why I pay them very little attention.

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"Act your age, not your shoe size" - Prince

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.

This is an interesting development, Chuck, but I'm not sure it really clarifies anything in this particular case. It confirms that India is quite happy to see HS code 9209.9200 exported, but I don't think there was ever any question about that. The affidavit states that this was the tariff code declared by the exporter, but that the shipment description was "falsely classified".

The World Customs Organization defines HS code 9209 as "Parts (for example, mechanisms for musical boxes) and accessories (for example, cards, discs and rolls for mechanical instruments) of musical instruments; metronomes, tuning forks and pitch pipes of all kinds." Whoever in India approved the export in question was apparently happy to accept roughly dimensioned, sanded pieces of wood as "fingerboards", and thus "instrument parts" under this code. It wouldn't surprise me if this has been accepted practice by Indian officials, but I don't know this for a fact. However, the US authorities obviously see them as roughly dimensioned, sanded pieces of raw wood -- an impression only reinforced by the LMII agent who declared the import as HS 4407 - "Wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or end-jointed, of a thickness exceeding 6 mm." You can hardly blame them -- what do you suppose the average Joe would consider the most appropriate HS code if shown a sample and given the choice? As we all know by now, material described as HS 4407 cannot be legally exported from India.

Meanwhile, I'm still convinced that the real target of this raid was access to records that could provide further evidence in the case of the seized Madagascar ebony case -- pretty clever, if that was the plan, and if successful, could support a potentially much more serious charge than messed up paperwork.

It seems to me that this case is about enforcing Indian Law and assisting them in protecting their endangered species. Why would "US authorities use a different definition than the "Indian Officials". It's endangered Indian goods that are being protected. Why would anyone in the US government use a different definition than those used by the Indian government? How could they even enforce this?

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Jim Hansen

This has nothing to do with protecting any "endangered" species, if it did, 'then' the FWS 'would' have grounds to lay charges based upon their interpret of CITES because the US Gov is signatory to CITES. In this instance however the law that is alleged to have been broken is an Indian law that was drafted by that government for the purpose of protecting their economy by ensure maximum value from an Indian government owned and managed resource. Regardless of what codes appeared on the customs document, the FWS are going to need to prove that Gibson/LMI had broken an 'Indian' law to validate any charges they lay in relation to the Lacey Act.

If Gibson/LMI had requested and received a direct ruling from the Indian Government's own Trade Ministry addressing the legality of those same products contained in this fretboard consignment, and that advice provides a determined indicating that those product had been acceptable for export under Indian law, then the FWS has no case against Gibson/LMI under Lacey because they are a domestic body that does not have authority to dictate what international laws mean, regardless of where in the world they make their interpretations, or how many web sites they visit to read the laws upon which they base those determinations. Even 'if' the FWS did make a correct determination of the Indian laws, insomuch that a body such as the Indian government's customs department was in complete agreement with them, one would imagine that the Indian Trade Ministry would be the only body with the authority to present a definitive ruling on whether or not the intent of their laws have been satisfied in relation to any particular consignment. In other words, if 'they' say a shipment is legal, then it is legal and any instruction they provide to that effect would over rule any other determination. I believe Lacey is clear in that it can be applied domestically to prosecute breeches of foreign law. No breech of foreign law = no authority to prosecute under the Lacey Act.

Sooner or later, what should have happened before the FWS affidavit was submitted, what should have happened before any seizure order was ever authorised is going to happen. Someone who understands the limitations of Lacey is going to ask the Indian trade ministry 'their' opinion as to whether or not a breech of Indian law has occurred here. When that someone finally does ask that question, the answer they receive from the Indians is going to determine the outcome. If the answer is 'yes' then the Lacey act will apply and Gibson/LMI will likely be prosecuted accordingly. If it is 'no', then there is no avenue to apply Lacey and the charges would be thrown out.

Yes there may have been a few supplementary charges relating to alleged improprieties of the importation documents, but they are a domestic issue and don't involve Lacey. My guess is that these too will end up being open to interpretation and if the FWS has based that part of their case on the interpretations of the same guy who attached Lacey to this consignment without prior consultation with the ITM, then those too are probably on shaky ground. Even if those charges did end up being considered valid, as I understand the Gibson/LMI shipment was under the control of a licenced customs clearance agent. If that is the case it is 'their' responsibility to get all the customs codes correct. That is what they charge for and one would only pay what they charge for two reasons, to remove the headache of juggling through all the bullshite 'and' to indemnify your arse against any charges relating to a stuffup.

Cheers

Kim

Here are 2 statements from Natalie Swango at Luthiers Mercantile International (LMI), who imported the wood involved in Gibson's latest raids:

“The exporter entered the correct code for his country's export according to Indian customs. I incorrectly listed Gibson as the consignee on the Lacey paperwork...the material was destined for them, but at this time LMI owns and is (was, ?) warehousing it. The broker made a mistake and listed the material as veneers, although all other paperwork correctly listed it as fingerboards (they have remedied this with an oops letter). The warehouse employee incorrectly informed the feds as to the ownership (although they bill me for the storage fees). The officers incorrectly came to the conclusion that we are smuggling wood.”

“The broker for LMI had someone new working in their office who listed the "entry" as veneers <6mm despite all other paperwork listing it as sawn wood and fingerboards in excess of 6mm. The broker sent a letter explaining the error and attempted to contact FWS to correct the entry, but they refused to speak to him. A copy of the letter was sent to LMI as well as FWS.”

Gibson wasn't the one bringing the wood in, since it had been sold to and was being imported by LMI. 19 CFR Part 142.3(a)(6) identifies the consignee as:

(6) Identification. When merchandise is imported having been sold, or consigned, to a person in the United States, the name, street address, and appropriate identification number of that person, as provided in §24.5 of this chapter, shall be shown on the entry documents

I can personally verify that LMI (who shipped the Indian wood to Gibson) 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.”

Mostly in government agencies and courts, it would seem! It's a lawyer's definition, not a woodworker's.

.0235" is about right. It's the .235" stuff that is unusual. Just a typical paperwork error.

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http://www.chassonguitars.com

Just discovered (thanks to Lance Peck) is that counter to what I'd run across in a court decision about another agency, the Lacey Act DOES after all allow the U.S. to interpret another country's laws differently than they themselves do. There can be a violation even if the foreign law isn't enforced in that country, and even though the violation may not be a criminal one in the foreign country it will be here. (see: http://www.aphis.usda.gov/plant_health/ ... Primer.pdf). In other words, you could be totally compliant according to foreign law as required by Lacey, and yet be arrested because the U.S. decides to interpret those laws differently! Am I missing something here?

The Lacey primer also states that for both paper and electronic submissions, the steps used in processing any submission will include:

"Declarations vetted for accuracy and compliance."

"Importer contacted if vetting reveals errors."

But Natalie at LMI says this not only didn't happen, but that FWS refused to talk to them when LMI found the error and tried to get it corrected:

"The broker for LMI had someone new working in their office who listed the "entry" as veneers <6mm despite all other paperwork listing it as sawn wood and fingerboards in excess of 6mm. The broker sent a letter explaining the error and attempted to contact FWS to correct the entry, but they refused to speak to him. A copy of the letter was sent to LMI as well as FWS.”

For what it’s worth (thanks to Robert Cefalu), Indian wood dealers are organizing and involving their government: http://articles.economictimes.indiatime ... zkiewicz/2

Here are 179 pages showing a Nashville, TN, court memorandum, a search warrant affidavit, and an Environmental Investigation Agency (EIA) report concerning the 2009 Gibson raids and Madagascar and U.S. wood Tariff regulations (courtesy Stephen Bacon, on Musical Instrument Makers Forum/MIMF): http://www.scribd.com/doc/63755524/US-v ... -to-Strike.

According to that brief it looks to me like Gibson has no chance whatsoever of getting the mac ebony shipment returned. All indications are that the wood was illegal so regardless of the outcome of any finished/not finished arguments, and regardless of whether Gibson had been aware of the fact, it seems quite clear that the wood in that shipment had no legal source.

If that is indeed the case, then just as the US Government submission suggests, the best status that Gibson can hope to hold in all of this is that of 'victim of crime'. In that case their only options for recovery of associated loss would be civil action against the perpetrators...(good luck with that one, even if successful there's no money in Madagascar that's why they cut logs illegally and try to sell'em on the "grey" market) or should a successful conviction be bought against those felons, then perhaps a claim under the victims of crime act may get up. But even if it did, I doubt it would even cover their lawyers lunch money let alone their legals....tough lesson and not one you would think they would risk inviting again.

For what its worth, and that aint much by the way, I don't see the same outcome for the Indian shipment. The USFWS appears to have tied to make Madagascan law apply to India for that one and then failed to follow protocol on vetting procedures to try and make plane "A" work. My bet is that its not going to hold up to even the mildest scrutiny but I am sure we will see.

Cheers

Kim

Lots of outrage, speculation, armchair lawyering, etc. expressed here, but let me just ask you this, folks:

Have any of you bothered to express your outrage to your elected senators and congresspersons? If you believe a government agency is out of control and needs to be brought back in line, you need to contact the people who control that agency's purse strings.

It's all well and good to ramp each other up and vent your frustrations, but if it only happens here, nothing will ever come of it.

On the other hand, if you vent these frustrations to the people you sent to congress, and nothing comes of it, you can fire them and hire new ones next election day. It's always appropriate to remind them of that fact in a polite, diplomatic way, when you write them. Just thank them politely for their time and tell them you never miss an opportunity to vote. They will get it. You might include a link to this forum thread, too.

But don't just blow off steam here. Blow off your steam to someone who can do something about it.

It's pretty much that simple. And...often (not always)...it really does work.

Patrick

Writing a letter, on paper, in an envelope, with a stamp on it carries more weight than any other form of communication when dealing with business or governments. Except maybe a ballot.

Alex

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"Indecision is the key to flexibility" .... Bumper sticker

Hey, if you're going to scold everyone, at least read the whole thread:

Exhibit "A" : viewtopic.php?p=438603#p438603

Exhibit "B" : viewtopic.php?p=439058#p439058

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http://www.birkonium.com CNC Products for Luthiers
http://banduramaker.blogspot.com

Not scolding at all. Just reminding all there is something we can do about it.

Thanks for that link Chuck. Makes interesting reading, although I don't have time to read it all in detail. On the face of it looks to me like Gibson has a real problem with the Madagascar Ebony. Country with unstable politics, violence, rampant corruption, rampant illegal logging in National Parks - > very likely any wood from Madagascar is illegal or at best of dubious legal origin. Guaranteed trouble. Why did Gibson risk it? It appears they knew this and knew the wood was contraband, so on the face of it looks to me that F&W have a strong case. Victim of crime? Well maybe, but Gibson will have to prove it.

As Kim says, the Indian Ebony is an entirely different matter, although F&W have applied the same rules as to export.

So, anybody seen this?
http://www.youtube.com/user/TheAlexJone ... E-tXQ6kQoU

Ughh, let's leave that nutjob Jones out of it.

Writing a letter, on paper, in an envelope, with a stamp on it carries more weight than any other form of communication when dealing with business or governments. Except maybe a ballot.

....or a donation...

I don't agree.
i don't sign petitions,
or write letters to congressmen,
and all that B.S.
It doesn't matter.

They don't listen anyway.

That is just not true. Maybe some don't listen, but some do. I don't know what it is like in the US, but some years ago I wrote a letter to our local member complaining about an immigration matter. Being somewhat cynical about politicians, I was not expecting much if anyting to come from it, but he did follow it up and the end result was a couple of people in an Aussie embassy overseas were sacked and charged with corruption. It made the evening news.

The bottom line is if everyone had your attitude and nobody does anything then nothing will happpen, ever, guaranteed.

I agree with Alan, have had the same experience and pretty much follow the same path. But then I also live in California. Last time I offered a written opposing view to my congressman within 6 months I received a very nice letter from the IRS scheduling an audit.

Can anyone summarize the 179 pgs into a few salient details?

A Madagascar wood dealer who was already in trouble with the government illegally sold Gibson wood which had been seized but was still in their possession, and it appears Gibson was aware of the "grey market" status of the transaction. According to tariff regulations, any ebony or rosewood (regardless of country of origin) which is over 6mm thick cannot be exported unless it's a fully "finished" product.

Not only was the wood illegal to start with, but Gibson was exporting from Madagascar and importing to the U.S. under an international tariff classification (HTS 9209.92.00) which is defined as "finished parts for musical instruments". The U.S. authorities are arguing that this applies only to parts which are essentially ready to assemble or "bolt on" with only a minimal amount of additional labor, and further that these "finished" parts must be in a form which cannot be remanufactured into something else. They're also arguing that because the pieces of flat wood known as "fingerboard blanks" which Gibson was buying are over 6mm thick and also require substantial reprocessing before they become an actual guitar part, they must be classified as an HTS 4407 item, "sawn wood" or "sawn logs", but in this form the ebony and rosewood are illegal to export or import. Another clasification of HTS 4408 applies to woods or veneers under 6mm thick, and the blanks cannot be brought in using this number either, although some of Gibson's shipments attempted to do so.