CITES GUITAR PASSPORTS APPROVED

[Chuck Erikson]

This is great news regarding international movement of guitars and other instruments, especially since approval on this proposal wasn't expected to happen at this conference! The passports are only for personal instruments, so buying/selling internationally continues to remain almost impossible. Tim Van Norman is one of the USFWS officials with whom NAMM's Lacey Task Force has been meeting, so we're beginning to see some practical results although much more needs to be done:

INSTRUMENTS TO REQUIRE “PASSPORTS”
CITES AGREES ON CERTIFICATES FOR ITEMS CONTAINING ENDANGERED SPECIES

Musical instruments and bows containing materials from protected species will be required to have their own dedicated “passports”, according to a system agreed by the Convention on International Trade in Endangered Species (CITES) on 12 March. At the Bangkok conference, where new restrictions on the trade in ebony and rosewood have also been established, delegates from 178 countries have agreed that a passport will be acceptable in place of the current system of permits. This will take the form of a certificate of ownership that contains details of all protected species (such as ivory and tortoiseshell) contained within the instrument.

Under current regulations, musicians carrying such instruments are often required to have a permit to enter a certain country, and then obtain another in order to leave it. A passport, which will be valid for three years, will state that the instrument is “owned for personal use and may not be sold, loaned, traded or otherwise disposed of outside the individual’s state of usual residence”.

The draft proposal was originally drawn up by the US Fish and Wildlife Service (FWS). Tim Van Norman, FWS' branch chief of permits, estimated that the US would begin implementing the resolution “within 90 days, assuming everything goes as planned, with the whole body of the Convention adopting the resolution”. He added that FWS would also be releasing guidance documents, such as application guides and fact sheets, before implementation begins.

Heather Noonan, vice president for advocacy at the League for American Orchestras, welcomed the agreement as an aid to streamlining the complex permit system. However, she stressed, “It is essential that a passport be voluntary, and take into account the time, expense, and practical realities of travelling with instruments. It is key that steps are taken today and in the future to educate the music community about how to navigate the permit rules – both those existing CITES requirements and the varying domestic endangered species permit rules for each country, which won’t be covered by the CITES passport concept”. She also stated that the passport concept would not be “a silver bullet” in itself.

Details such as the likely cost of a passport or the duration of the application process have not yet been disclosed.

[Doug Shaker]

It will be interesting to see what documentation they require. For example, is the ebony I bought two years ago OK?
How about the abalone that my friend gave to me 15 years ago? I am relieved that there might be a way to end this
uncertainty, but my guess is that their first cut at the bureaucracy is not going to be pretty. Their second or third
cut at it will probably be better. I hope.

[Simon Magennis]

My teacher recently completed the process of getting German "passports" for his two older BR instruments. What he understands from the process is that it simply identifies you as the bona fide owner of an instrument that predates all this stuff. It allows easy travel with the instrument within the EU but he is under the impression that for other countries he will still need to do the import/export stuff for customs albeit with much simplified documentation as the passport in essence proves that the paperwork is ok.

[Chuck Erikson]

Doug: There's no specific mechanism in the new passport proposal that allows for new instruments containing old pre-ban "legacy" materials. That's another issue entirely, one which is being worked on with the authorities. The good news is that there's already an application process in place which allows a luthier to register unpapered CITES-listed woods and obtain an exemption on either a specific instrument or on a "master" list of inventory, and several luthiers have successfully received exemptions. Once exempted, that paperwork can be used to create valid ducumentation on instruments made from the wood, which will be acceptable when applying for an individual passport.

Simon: Currently his passport won't do any good getting into the U.S. and he'll still need to comply with all the documentation needed here. The German passport may or may not be accepted in other EU countries but until the CITES passport details are finalized there's no universal acceptance of it.

[Alan Carruth]

I'm still wondering why there would be any problem with any protected species in a personal instrument that is not going to be sold. The treaty covers TRADE in endangered species; if there is no trade there should be no issue. Of course people will try to use this to illegally export restricted stuff, and I hope that get nailed for it. But if you're going to bring the thing back in, and have the paperwork to prove that you did, what's the difference whether the materials are CITES compliant or not?

Alan Carruth / Luthier

[Chuck Erikson]

Hi, Alan! What the regulations are intended to do is expose any items which were made using illegally harvested materials, regardless of how old the item is or whether or not the current owner is actively involved in commercial activity with it. Simply allowing a person to travel back and forth over the border without proof of legality could actually encourage the domestic sale of instruments made from contraband materials, since these would then never be questioned. Really, the only method to halt illegal harvesting is to screen everything going in or out of a country.

As far as CITES and Lacey covering TRADE activity, any guitar at some stage in its life actually was involved in a number of commercial transactions: from logging to milling to shipping to purchase of materials to sale or resale of the finished product, money traded hands and somebody profited. Lacey makes it very clear that if at any point in that supply chain any law was violated ("tribal, state, national. or international"), from that point on all other actors will be held equally in violation. This is referred to as the "chain of custody", and the effort required to establish legality at every step is called "due diligence", both of which are legally binding concepts.

This isn't fair, equitable, or even workable for a number of reasons, but it's what we're stuck with unless Lacey can be amended legislatively (through bills introduced in the Congress and Senate). This was attempted unsuccessfully several times last year; but people in the music industry (including on this forum) would rather spend many hours whining, complaining, criticizing, philosophising, arguing, and getting into pissing matches than taking 10 minutes to copy & paste letters to their representatives supporting bills which would start to fix the unintended consequences of badly written laws.

We can all wish things were different, but that's not a world that exists outside our craniums! Like them or not the regs are what they are, and the passport solution may be deeply inadequate in many respects but at least it's a solid victory in the right direction (at least administratively, if not legislatively). As such, it's something that can be revised and strengthened once it's put into action.

[Doug Shaker]

Doug: There's no specific mechanism in the new passport proposal that allows for new instruments containing old pre-ban "legacy" materials. That's another issue entirely, one which is being worked on with the authorities. The good news is that there's already an application process in place which allows a luthier to register unpapered CITES-listed woods and obtain an exemption on either a specific instrument or on a "master" list of inventory, and several luthiers have successfully received exemptions. Once exempted, that paperwork can be used to create valid documentation on instruments made from the wood, which will be acceptable when applying for an individual passport..

Chuck-

Can you give me a pointer to the application process for unpapered woods or, for that matter, shell products? I suppose I should get started on facing up to this stuff.

[Chuck Erikson]

Here's a good preliminary analysis of this passport decision by Law Professor (and guitar player/author) John Thomas: http://www.fretboardjournal.com/blog/mu ... -provision. As approved the passport is far from perfect and has several important issues which remain unresolved or unaddressed, but USFWS is discussing it with the music industry and it can always be revised and refined once it's functional.

[Chuck Erikson]

Can you give me a pointer to the application process for unpapered woods or, for that matter, shell products? I suppose I should get started on facing up to this stuff.

Shell isn't really an issue here, since none of the species used in guitars is listed as controlled and thus require no exemptions. But several instrument woods are impacted. APHIS recently issued guidelines for getting exemption certificates on pre-2008 items (including guitars) which contain unknown woods or lack other information (but only if the wood is really not identifiable!): http://www.aphis.usda.gov/plant_health/ ... -codes.pdf.

The non-commercial export of an instrument containing CITES I materials like Brazilian rosewood, tortoiseshell, or ivory requires 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).

This permit can also be used by luthiers to register unpapered stocks of Brazilian rosewood or other listed materials. 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 at: http://www.fws.gov/international/DMA_DS ... uments.pdf.

Take good close-up pictures of the woods, and submit an accurate tally of how many sets of backs, sides, tops, neck blanks, veneers, bridges, etc. you have in stock; or, how much wood you have in cubic meters (along with your best estimate of the number of guitars that will produce). Then, if approved, be very careful to not make more instruments from that inventory than the estimate allowed for.

APHIS and USFWS have been very encouraging and cooperative about accepting just a written personal statement which includes as much detail as possible about the history of the wood. Include copies of any receipts, invoices, cancelled checks, emails, letters, personal notes, journal entries, dated photos, or other associated documents. It also helps to get written and signed statements from anyone else who witnessed or was involved at any point in the pre-ban history of the wood. The more detail the better. Get everything notarized and submit with the application. If the story is credible and doesn’t involve a container load of material, there’s a very good chance of being approved. If denied, contact me and I can put you in touch with friendly officials at the national level.

By the way, applying for paperwork absolutely will not somehow “target” you for seizure of the unpapered woods or any enforcement action! With no paper trail, the feds know that it would be impossible for them to prove it was imported illegally – they can raise questions about it, but even if you verbally admitted to a Lacey violation that would not be admissible evidence in court. But when wood arrives at the U.S. border, the burden of proof is then on you to prove legality.

[Steve Senseney]

Thanks Chuck!

[Andy Birko]

Shell isn't really an issue here, since none of the species used in guitars is listed as controlled and thus require no exemptions. But several instrument woods are impacted.

Does this help any with "look-alike" products used in instruments? e.g. If I build an instrument using Zipflex (abalam) purfling and legally procured ebony from LMII, I'm assuming one wouldn't really need a passport to cross a border but, I've heard unsubstantiated stories that the border agents can take a guilty until proven innocent stance requiring that you prove that the materials on your instrument are not banned.

Is my scenario even an issue?

[Doug Shaker]

Can you give me a pointer to the application process for unpapered woods or, for that matter, shell products? I suppose I should get started on facing up to this stuff.

....

This permit can also be used by luthiers to register unpapered stocks of Brazilian rosewood or other listed materials. 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 at: http://www.fws.gov/international/DMA_DS ... uments.pdf.

....

I couldn't find that URL when I looked. I did find this, though:

http://www.fws.gov/international/pdf/fa ... s-2010.pdf

-Doug Shaker

[Michael Lewis]

This is great information, Chuck. Finally there is some light at the end of the tunnel. You are to be heartily applauded for all the effort you have put forth and for all the hassle and grief you have been trough regarding this fiasco of bureaucracy. You are one of my heroes. Thank you.