CITES, Lacey, & US border problems for instruments/materials

[Duke of Pearl]

A FEW NOTES ON TRAVELING INTERNATIONALLY WITH OR SHIPPING A MUSICAL INSTRUMENT

If traveling out of the U.S. with an instrument containing mother-of-pearl inlays and Brazilian rosewood, what needs to be done to stay out of trouble? That’s a deceptively simple question that has an unfortunately complicated answer!

To start with, whether traveling with or shipping any items (such as raw materials, parts, musical instruments, or antiques) which contain animal species listed in CITES Appendix I, II, or III (http://www.cites.org/eng/app/index.shtml), not just any U.S. border port can be used. The ONLY ports of entry (POE’s, at http://www.fws.gov/le/ImpExp/Designated_Ports.htm) allowed to deal with wildlife shipments (of any sort, not just CITES related) that are commercial or require a species-specific permit are these 18: Anchorage, Atlanta, Baltimore, Boston, Chicago, Dallas-Fort Worth, Honolulu, Houston, Los Angeles, Louisville, Memphis, Miami, New Orleans, New York, Newark, Portland, San Francisco and Seattle. You may need to change travel plans in order to clear through one of these ports. If it can be shown that using an approved port would create a serious financial hardship, exception permits (http://edocket.access.gpo.gov/cfr_2002/ ... r14.33.htm) for using a non-approved port can be applied for (which can take substantial time to receive permission). A FWS Q&A on this subject can be found at http://www.fws.gov/le/ImpExp/CommWildli ... Export.htm.

Non-commercial personal wildlife items or baggage and household effects which do not require permitting may be cleared at any port of entry (http://www.fws.gov/le/ImpExp/Other_Ports.htm). Somewhat different and more restrictive laws may apply to commercial activities.

An instrument containing CITES I materials like Brazilian rosewood, tortoiseshell, or ivory must be accompanied by a species-specific export permit, such as a preconvention certificate 3-200-32 (http://www.fws.gov/forms/3-200-32.pdf) – but this only applies to the U.S. and doesn’t necessarily protect the owner in other countries. For CITES II materials no permit is needed as long as all other personal exemption requirements are met (such as not involving any type of commercial activity).

Now let’s deal with the instrument question, but we’ll set up a few different situations:

1) If it didn't have the shell inlay (a wildlife material) or the Brazilian rosewood (or any other CITES listed woods) you could simply clear it through customs as a "personal effect". Even then, it would be wise to have with you a list of all the wood materials including the common and Latin (scientific) species names and their countries of origin. Never volunteer the list but only whip it out if you get challenged about any of the woods.

2) If it has the Brazilian rosewood but not the shell inlay, and if the instrument has a serial number that can be referenced against rough manufacturing dates which are pre-ban (June 11, 1992) or other qualifying documents (original receipts; professional age estimate), the rosewood would require an FWS Form 3-200-32 (http://www.fws.gov/forms/3-200-32.pdf) which can be filed to get a Pre-Convention Certificate/species-specific permit. The cost is $50.00-200.00 (depending on whether applying for a single shipment, personal property, or for setting up a “Master File” for multiple items). Currently the approval process can take 3-6 months. A recently published factsheet by the USFWS regarding musical instrument issues can be seen here: http://www.fws.gov/international/DMA_DS ... uments.pdf.

3) If it has the shell inlay but no Brazilian rosewood or other CITES listed wood, use USFWS Form 3-177 9http://www.fws.gov/le/ImpExp/faqs.htm. Box 6 of this form requires a unique 3 character (alphabetic, numeric, or alphanumeric) Entry Filer Code (http://ecfr.gpoaccess.gov/cgi/t/text/te ... .4&idno=19) as assigned by CBP to all licensed brokers or importers/exporters. This code is then always used as the first three characters of a special 11 digit number which must be computed according to an extremely complex formula for each shipment. CBP will assign this Entry Filer Code to professional brokers and large volume importers, but unfortunately for anyone else the “large volume” threshold is defined as at least 15 shipments per month with a minimum annual value of $1,000,000.00! The only exception for smaller entities is if they already own a special Automated Broker Interface (ABI) software program used in electronic (internet) filings, one not available directly from Customs but through independent vendors and at a cost of approximately $50,000.00. So, in order to be strictly legal and avoid possible confiscation and fines, a customs broker must be hired to complete the paperwork – including the mandatory $91.00 “Inspection Fee” this is going to cost about $200.00 each time the instrument leaves or reenters the country.

Additionally, when importing or exporting any wildlife materials (or products containing them) even in the tiniest amounts, it will be necessary to apply for an FWS permit (Form 3-200-3, at http://www.fws.gov/forms/3-200-3.pdf) or license in order to fill out the 3-177 form. This will cost $100.00/year, even if you only need to use it once.

4) If it has both the shell inlay and the Brazilian rosewood or other CITES listed wood, both the 3-200-32 and 3-177 forms will be necessary, as well as the 3-200-3 permit.

5) If it has even the tiniest bit of ivory such as a string nut or bridge saddle, you’ll need the 3-200-3 USFWS Import/Export Permit and also a USFWS permit as below:

African elephant ivory removed from the wild after February 4, 1977, is not considered to be Pre-Convention (CITES); and worked African elephant ivory may only be re-exported for non-commercial purposes. To re-export such items, submit USFWS Form 3-200-73 (http://www.fws.gov/forms/3-200-73.pdf). You must state that it was acquired (removed from the wild or held in captivity or a controlled environment) before the date CITES applied to it. Other listing dates can be found at the CITES website (http://www.cites.org/). The cost is $75.00. Raw ivory tusks may not be re-exported. Mammoth and mastodon ivories can be freely traded without any permits.

Fines and penalties for non-compliance can be extremely severe ($100,000-500,000 and 1-5 years in jail) especially if it’s determined that violations were done “knowingly” and without exercising “due care” in researching applicable laws; punishment is reduced to forfeiture of goods and perhaps several hundred dollars in fines if it can be shown illegal activity was “unknowing” and that “due care” was reasonably attempted. Lacey Act provisions and a flow chart of penalties and fines for non-compliance on plant products are summed up in an Environmental Investigation Agency document, The U.S. Lacey Act (http://www.eia-global.org/lacey/P6.EIA.LaceyReport.pdf). Penalties are the same for both animal and plant violations.

For full details on all these laws and how to deal with them, go to this recently posted article at the Guild of American Luthiers (GAL) site: http://www.luth.org/cites.htm.

“Flying under the radar” may have worked for decades, but with intensified governmental focus on stringed instruments, doing things the old way involves risks that can easily result in both the loss of an instrument, a business, and maybe even personal bankruptcy. How lucky do you feel? Welcome to the world of Big Government – if you don’t take a liking to it, go complain to a politician and think hard about who you’ve been voting for.

[tippie53]

thanks for posting this Chuck I am sure it will help someone . I will see it gets an important status

[Duke of Pearl]

Yup!

[kencierp]

http://www.eia-global.org/lacey/P6.EIA.LaceyReport.pdf

[johnnparchem]

NPR had a story on the Gibson raid today.

http://www.npr.org/player/v2/mediaPlaye ... =140093803

[Duke of Pearl]

The NPR piece was bad reporting and deeply flawed, since no one seems to have done their background research: other than involving Gibson, the two raids over 1 1/2 years apart had little or nothing to do with each other. The first raid concerned endangered Madagascar woods alledgedly logged illegally in a national forest (yet to be charged or proven); the latest raids involve non-endangered woods logged in Indian government controlled sustainably managed plantations, brought into the U.S. (as they have been for almost 20 years, by everybody) with full paperwork from both the Indian authorities and certification from the Forest Stewardship Council (an NGO watchdog).

It's seems to be more about an erroneous tariff code on a few of the documents than about the wood itself -- something that's happened on a couple of our own shell import shipments when some desk jockey at the brokerage decides to change the correct tariff codes we supply (thus instantly converting a load of shell blanks into a shipment of "jewelry", for instance!). It's nothing more than abusive enforcement by agencies who have become almost autonomous in their powers...

A lot of the TV and Youtube coverage is equally mistaken or politically slanted.

[tippie53]

Chuck has been through this first hand and knows more about this than anyone of us . These rules are for real . Many of the You tube vids that I have seen are not very detailed and at best slanted . Journalists often get things very wrong .

[kencierp]

There are plenty of laws on the books that totally piss me off everyday, but it seems to me action to repeal only occurs when the congressional leaders are made aware of the situation by sighting actual specifics of injustices that are occurring on a regular basis. I am sure many of us would be willing to present such documentation to our legislators so reviews can be requested and perhaps appropriate action taken. Frankly, based on what guys like Chris Martin have stated (they will deal with the restrictions) its an up hill battle. $.02

[tippie53]

The thing is the 2008 revisions to the Lacey act has given too much power to some of the policing agencies without education to the supply chain . Yes they do need it and I agree Ken , we need to contact out legislators to help to make the rules more bearable in the understanding of these regulations .
From my understanding of this , it is more when you ship out of country where you have to watch your P's and Q's. Also you have to know where your sources are getting the woods you are using and if they are compliant . I am pretty sure few Ebay suppliers are . RC Tonewoods is , Colonial Tonewoods also as far I know .
Thanks again Chuck for this information and feel free to slap us anytime you thing we are not correct.

[Duke of Pearl]

The November, 2009, Gibson raid was the very first enforcement action on plant materials under the newly implemented Lacey regs. This makes it a major "test case", the outcome of which will establish imortant "court precedents" that will be used from then on. Because the last phase of Lacey regarding pianos and guitars was implemented only on April 1, 2010, there hasn't been enough time yet for documented convictions to occur, thus the lack of "hard" examples that can be referenced. We're left with nothing more than anecdotal reports of confiscations and fines (especially with vintage and antique items), harassment by agents even when all paperwork is correct (as happened to Michael Gurian), and long border delays (as experienced by several luthiers returning from the Montreal guitar show).

Regulations differ somewhat depending on whether a border movement involves commercial goods or personal effects, with more restrictions and declaration demands on the former. It's also more restrictive bringing plant and wildlife materials into the U.S. than getting them out of the country.

Tippie53 is correct that thousands of illegal transactions occur every single day, on sites such as eBay, Trocadero, Ruby Lane, Craig's List, and many others. This is especially true for small and relatively low-value items shipped in padded envelopes and small boxes which are either mislabeled or not declared at all (usually sent through the postal system). The authorities are aware of this but it would take many thousands of agents rather than the 400 or so now available to even begin to get things under "control" -- one reason why the regulations as now written are manifestly unenforceable and/or only enforced selectively and unfairly (targeted rather than ubiquitous enforcement).

Since the regs allow no de minimis exceptions for a shipment's size or value, small businesses are especially impacted, since complying with the law (and it's extra paperwork and costs) puts them at a hugely unfair disadvantage with competitors who continue to fly under the radar. In such tight-knit specialty industries as guitar making, it's a very tough decision to rat out a fellow business person who's also struggling to make a living even if they are in violation of Lacey. If enforcement agents manage to do it on their own, that's one thing, but at this early stage of new and unfamiliar regulations for everybody I'm not yet willing to turn someone in.