LACEY ACT UPDATE AND YOU

[Chuck Erikson]

Since the Summer of 2011 I’ve been working closely with the National Association of Music Merchants (NAMM) as a member of their 18-person Lacey Task Force team in Washington, DC, urging Congress and the Senate to pass legislation remedying the Lacey Act’s unintended consequences which are crippling many businesses in the music industry (and others). I was also invited to join a second and much smaller (5 or 6 person) NAMM team involved in meeting with federal agency officials in seeking non-legislative solutions. This smaller team has had DC meetings in December and February, with the next scheduled for early April, the beginnings of a series of discussions which could last from one to three years. So far, we’ve been talking to officials from various branches of the U.S. Fish and Wildlife Service (USFWS), specifically their Division of Management Authority and Office of Law Enforcement. Our next session will add people from U.S. Customs and Border Protection (USCBP). It may be easier to achieve institutional/agency fixes than legislative, but both approaches are absolutely necessary to get permanent relief.

This last trip involved trying to get USFWS to back off on the $93.00 Inspection Fee and mandatory requirement of using expensive ($140.00) brokerage services for import/export shipments containing even the tiniest amount (such as one abalone dot) of wildlife material — this is the single most devastating factor in killing many small international transactions, which for many businesses are about 30% of total sales. It’s also the biggest sticking point in moving any instrument across U.S. borders which contains so little as a single piece of shell, thus incurring the special declaration requirement and expenses. And this is exactly why PRS Guitars, formerly the largest user of shell in the industry, in May of last year decided to switch to only plastics and Corian® in all their production guitars – and others seem to be headed that way also. USFWS is totally unwilling to accommodate exemptions for single instruments, or for small shipment values under our suggested $300.00 limit; in their experience, doing so would generate a vast number of shipments all falsely undervalued in order to qualify for the exemption, something they don’t have the time or manpower to sort out.

As for any wood stocks currently possessed by luthiers, especially any unpapered Brazilian rosewood or other listed species, USFWS is anxious to work with small builders to get their woods exempted so they can be shipped internationally as raw material, parts, or in an instrument. All that’s needed is for a builder to submit clearly detailed photos of currently held pieces, along with common and Latin name, country of origin, the exact amount of wood involved (in metric weight or volume), and an exact estimate of how many tops/backs/sides/fingerboards/bridges, etc. the wood is expected to yield (or number of existing pieces or sets). Include any and all paperwork associated with the wood, as well as a written and notarized statement detailing all you can remember about the wood or product’s history and provenance (when/where/whom it was purchased/inherited from, any prior owners, anyone who witnessed the sale, etc.). Also collect notarized statements, pictures, calendar entries, and any other supportive material from anyone involved in or witnessing any of the wood’s past history, and submit this information using a USFWS exemption application Form 3-200-32. Cost will run between $50-200, depending on whether applying for a single item/instrument or for setting up a “master file” on multiple things.

Nevada luthier Don Musser recently became the first to try this for unpapered tonewood (in a guitar headed for Canada), based on statements from both he and myself (I witnessed a transaction for his Brazilian in 1981), and he got an exemption certificate on the first try! He now plans to apply for a master file on his remaining wood. USFWS officials assure us that they’ll do everything possible for luthiers who submit a credible/believable account, for reasonable amounts of inventory which would be expected of a smaller shop (container loads would be more problematic!).

If an application is rejected, USFWS will indicate the reasons so that it can be corrected and resubmitted. If still rejected, our team has personal contact numbers for high ranking officials who are willing to intervene as far as the law allows, and who can pass their decisions on down to the subordinate agents in local offices processing the paperwork. Applying and being rejected will in no way cause USFWS to consider the wood in question to be “illegal”, or cause the luthier to be targeted for enforcement action or raids. The only way any given wood can be labeled as illegal is for the government to produce a paper trail (or witnesses) proving such is the case — an extremely unlikely situation with undocumented wood!

This encouraging information needs to be broadcast to luthiers as widely as possible, so please pass along this update to your own circle of music industry friends.

Legislatively, nothing at all will happen unless a huge number of luthiers, dealers, collectors, repair people, musicians, roadies, and groupies are willing to spend a few minutes contacting their district congressional reps and state senators politely but firmly requesting that they support reasonable amendments which will fix the Lacey Act’s unintended consequences. The only vehicle available is through NAMM’s efforts at getting congressional co-sponsors of the Cooper-Blackburn HR 3210 Lacey RELIEF Act bill (see links and sample/template letters on NAMM’s website, at: http://www.namm.org/public-affairs/arti ... -hr-3210-r). It currently has only 18 sponsors, but at least 100 or so are needed for it to be taken seriously and not just die in committee. If not enough support is gained fairly soon, we’ll have to start from scratch again after the coming elections change the names we’ve been dealing with in DC.

The current issue of ASIA’s Guitarmaker (Winter 2011) includes a second publication containing extensive and very specific information about how to comply with CITES and Lacey and stay out of trouble. The GAL website also has a link to a long and detailed article which I authored, at: http://www.luth.org/cites.htm. Anyone wanting the real facts behind Gibson’s situation can contact me with their email address, and will reply with a load of attachments of thoroughly documented and sourced information — almost nothing in the media, from Gibson’s PR campaign, or from political sources is true or accurate.

PLEASE TAKE NOTE that none of the above Lacey information has anything at all to do with partisan (party) politics or any past or current administration policies -- the 2008 Lacey amendment was initiated with bi-partisan support, as are the current proposed legislative fixes. These are regulatory and enforcement issues that are adversely affecting us all, and not political problems. To make it into a political issue will only make it more difficult to get anything accomplished in Washington. It also has absolutely nothing to do directly with Gibson's situation: NAMM was already working closely with vintage instrument dealer George Gruhn and his Tennessee Congressman Jim Cooper in 2008, long before the first Gibson raid in 2009, to deal with Lacey's often overly-broad, undefined, and ambiguous wording which it was clear even then would cause widespread problems in the music industry. Lacey was never properly reviewed and discussed, having been eclipsed by the much larger Farm Bill to which it was paper-clipped -- in fact, almost none of those who voted to pass the very important and hotly debated Farm Bill had even read the Lacey rider!

[Mario Proulx]

Thanks for the update Chuck!

Sadly, like PRS and others, I've had to also eliminate all shell from my instruments, including your wonderful abalam that has been used for my logo since it was first introduced(late 90's?). There was just no way around it; because I sell directly to each one of my clients(I'm in Canada and 99.4% of my clients are in the US), each one would have been required to apply for the USFWS license and pay for both a license and inspection, which wasn't going to happen, if for no other reason than most clients won't want to apply for the license and sign away their rights.

I sure hope you all keep fighting to have this changed, but I'm afraid that even if it does get changed, the damage has already been done to the shell supply industry. My clients have already said that they love the "new" logo, which is now cut from maple(carefully chosen to show a lot of tiny ray flecks in order to keep it interesting). Being forced to find and accept new materials, both luthiers and musicians are now much more open to alternatives.

[Steve Senseney]

Thanks for the update.

Maybe we will all use sharpies for rosettes and bindings, and inlay.

[Chuck Erikson]

Frustratingly, the over-regulation and bureaucracy concerning shell at the border has nothing at all to do with saving a single endangered animal, which was the original intent of Lacey, but only in endangering many long-established U.S. businesses. This is a larger issue than just our shell, or only new instruments. As only a couple of many instances, it also vastly impacts all vintage and used instrument dealers (and collectors) for whom trying to exempt every pre-ban instrument in their inventory is virtually impossible (and much of this market, perhaps 30% or more, has always been international); it also impacts every traveling musician, band, or orchestra that owns instruments containing even the tiniest amount of plant or wildlife material. At a time when the economy has already hammered us, we're now being forced by our own government to invest much time and cash to develop non-wildlife inlay materials (although if successful they'll be spectacular and unlike anything seen before on instruments!). Several of these were privately shown at the January NAMM show and are now being tested by Martin, Taylor, and PRS. Kevin Ryan reports success in making two of these into his ZipFlex, and we'll hopefully be able to get tooled up for production late this year. Adapt or become a fossil...

[Louie Atienza]

Frustratingly, the over-regulation and bureaucracy concerning shell at the border has nothing at all to do with saving a single endangered animal, which was the original intent of Lacey, but only in endangering many long-established U.S. businesses. This is a larger issue than just our shell, or only new instruments. As only a couple of many instances, it also vastly impacts all vintage and used instrument dealers (and collectors) for whom trying to exempt every pre-ban instrument in their inventory is virtually impossible (and much of this market, perhaps 30% or more, has always been international); it also impacts every traveling musician, band, or orchestra that owns instruments containing even the tiniest amount of plant or wildlife material. At a time when the economy has already hammered us, we're now being forced by our own government to invest much time and cash to develop non-wildlife inlay materials (although if successful they'll be spectacular and unlike anything seen before on instruments!). Several of these were privately shown at the January NAMM show and are now being tested by Martin, Taylor, and PRS. Kevin Ryan reports success in making two of these into his ZipFlex, and we'll hopefully be able to get tooled up for production late this year. Adapt or become a fossil...

If I become a fossil, then no one would be able to use my remains in a guitar?

I do have this sheet of mica, that if I could consolidate with epoxy or glue, would make for really nice inlay.

[Bill Hicklin]

Thanks for the update.

Maybe we will all use sharpies for rosettes and bindings, and inlay.

While I agree entirely with Chuck, and will be writing my Congresscritters, nonetheless there is no reason we can't make spectacular rosettes/binding/purfling with domestic woods like maple, cherry, walnut etc; non-endangered/CITES imported woods not covered by Lacey* like EIR, bubinga, lacewood etc, and nonwild-animal products like bone.

Still, it's hard to think of a decent pearl replacement- Just Say No to mother-of-toilet-seat!

--------------------------

*Chuck, please correct me if I'm wrong, but I think I understand your article to say that CITES only prohibits import/export of Appendix I species, not domestic trade; and US domestic trade is only banned (under the ESA) in products from the American list of endangered species, which differs from the CITES list. Is that the gist of it?

[Ron Belanger]

Thanks for the updates Chuck.

[Chuck Erikson]

Lacey requires enforcement of plant and wildlife law at all levels: tribal, local, state, national, and international. As such, it applies to all domestic and foreign species including those listed by state fish and game agencies, the ESA, the Marine Mammal Protection Act, U.S. Forest Service, Bureau of Land Management, CITES, and the internal laws of all other countries (from local to federal). For us, CITES is in effect only at the U.S. border, but after an item is once in the country Lacey kicks in and applies even to interstate movements. Since the list of species is sometimes different between ESA and CITES, you need to understand and comply with both in order to not be in violation of Lacey.

Brazilian rosewood is a CITES Appendix I material; but wood already in the U.S. doesn't require any sort of paper trail in order to buy, sell or use it domestically since it's not listed by ESA. But if unpapered, it can't legally cross the U.S. border -- this applies not only to newly made musical instruments but to vintage and antique regardless of how old they might be. Hawksbill sea turtle shell is listed in both CITES and ESA, so is totally illegal to trade in commercially at any level.

Regulation on some materials such as ivories can differ state to state, since state law is allowed to be more restrictive than federal (but not easier or in conflict with federal law). Violating the law of any state is also a violation of Lacey, and we are held legally responsible for knowing all the regulations at every level.

Will the use of nothing but unprotected domestically sourced woods avoid problems with Lacey? Not necessarily, even if harvested from your own property. As with most states, California has it’s own regulations about cutting a tree on private property and using it commercially: California Forest Practice Act (FPA): http://www.fire.ca.gov/resource_mgt/dow ... e_No_1.pdf.

So if intending to use locally harvested wood (in CA) be aware of this: "The State Forest Practice Act and Forest Practice Rules govern the harvest of timber from private lands in California.” The Rules require a landowner who harvests timber for commercial purposes (i.e.: selling, bartering, or trading logs or milled lumber to another party) to submit an exemption notice or timber harvesting plan document with the California Department of Forestry. California law requires a Timber Harvest Plan (THP) permit to cut any timberland species tree that will be used commercially, even just one tree on your own property (and even though the same timber can be felled and burned with almost no restriction). So using wood that was harvested locally without a permit is not only a violation of state law but also of the Lacey Act, which includes enforcement of state law.

The THP is the environmental review document submitted by landowners to CAL FIRE outlining what timber they want to harvest, how it will be harvested, and the steps that will be taken to prevent damage to the environment. THPs are prepared by Registered Professional Foresters (RPFs) who are licensed to prepare these comprehensive, detailed plans. THPs can range from about 100 pages to more than 500 pages (and this isn't a cheap or quick process!). CAL FIRE follows-up on approved THPs with site inspections and can shut down operations, cite or fine Registered Professional Foresters, Licensed Timber Operators (LTOs), and private landowners if illegal operations are found.

Basically you can cut almost all you want for firewood, fence posts, and burn piles, but can't legally sell or commercially use the same woods (such as for making instruments). Unless someone tips off authorities it's a paperwork thing that won't really affect much, but lack of proper origin or “chain of custody” paperwork could cause declaration illegalities when this wood or anything made from it enters or leaves the country.

[Douglas Ketellapper]

Thank you Chuck for your update. I'm glad to be hearing directly from someone involved with this.

As an amateur woodworker/luthier, I'm interested in this. Not because it will impinge on any kind of living I might make from my hobby, but rather how materials I've accumulated legally over the years in my "stash" might be useless unless I go through some kind of convoluted karate-style paperwork and fees. While I understand the thought behind the law, and what the attempt to accomplish is, I feel like it's too far-reaching, and causes more harm than good, unless you're in the bureaucracy business. That's one thing this is definitely good for.

I'm all for locally sourced materials, but I own exotics that I've picked up over the years because I found them beautiful and useful. The fact that even my locally sourced woods might need provenance, or the items I make from abalone shells that I get from friends who dive for them (legally, and tagged), or purchase from someone reputable like Chuck seems pretty draconian. If anything points to the United States becoming a nation of paper pushers rather than an innovative, creative productive nation, then this is it. No, I don't want foreign lands denuded for the sake of some pretty things, nor do I want to spend my hours and dollars negotiating some labyrinthine bureaucracy which likely doesn't accomplish anything near it's goals.

There has to be a better way, and while I have no idea how that might look, I'm all for it if it's found.

[Rodger Knox]

Thanks for all the good info Chuck. I'm sure this will all get sorted out, but it may take several years. Legislation is like that, especially with environmental issues. As a Civil Engineer, part of my job is "reclaiming" wetlands, and the Federal, State, and Local regulations for disturbing wetlands is similiar to Lacey, very broad and general. This gives the enforcement agency broadreaching authority to determine what is regulated, and how it is accomplished. It usually takes a couple of years for this to happen, even if there's no change in the legislation.
Everybody wants to Save the Wetlands, but having to obtain a permit to mow that wet spot in the back yard is a bit extreame, particularly since it takes a year to 18 months to obtain the permit. That wet spot in the back yard may be subject to wetland regulations, and mowing it is a criminal offence that could result in jail time. Obviously that's not the intent of the legislation, but it is the letter of the law. If it has wetland soil and a wetland plant, it is protected and requires a permit for any disturbance, even mowing.
Hopefully it won't be too long before the various agencies develop their "policy" on what is regulated and how it's done. I don't expect it, but the agencies could adopt a policy that exempts musical instruments, or places a lower limit on the amount of material in question before they require a permit. That type of thing can't be included in the legislation, it's a loophole that could be misused. As agency Policy, it can be decided on a case by case basis which allows the agency to "let the little stuff get by" while still maintaining control.

[Steve Senseney]

As I read all of this, I wondered if necklaces, and jewelry are under the same scrutiny? Inexpensive jewelry would need the same expensive certification?

[Chuck Erikson]

Yes, they're all subject to Lacey enforcement, as are a myriad of products from many other industries. Be assured that USFWS is well aware of the thousands of daily small import/export transactions involving natural materials, almost all of which they consider to be illegal. The only thing preventing more vigorous enforcement is their lack of manpower and funding; but as one agent told me last year, "We'll get them all some day." Lacey's "no de minimis exception" clause requires the same paperwork and fees for any border entry regardless of size or value, and this is one of the things which the Cooper-Blackburn HR-3210 RELIEF Act bill seeks to change (see opening post of this thread on how to promote support for this legislation).

[Michael Lewis]

So, as I understand the situation No Good Deed Goes Unpunished. That is an insidious law that acts upon elements of other laws, it becomes a monster if aroused. It seems to me this will cause unintended consequences of more black market trade that goes under the 'radar' and won't generate any tax revenues.

[Bill Hicklin]

Congressman and Senators written.

[Chuck Erikson]

A huge thanks on that!! And to everyone else who's cared enough about U.S. guitar making to do the same.

[Steve Gonwa]

Congressman and Wisconsin Senators contacted. Thanks.

[Robert Eason]

This makes for interesting reading and from what I am understanding about the Lacey Act it is turning all normally law abiding citizens into criminals! It appears to me that the exact thing that this country was founded upon is being totally taken away from us which is freedom. While I do agree that we have the responsibility to protect the plants and animals of this planet, we also should do it in a way that also affords the same protection to the small business person who is trying to eek out a living. This act is going to place an unnecessary monetary burden on all, from the person that has to pay for the permits, to all taxpayers who will be hit to pay for the salaries and pensions of all the additional governmental employees. Once again it shows that poor choices made by those we trust to do the correct thing are having disasterous results and that those we trust should take the time to thoroughly read and fully understand the ramifications of what they are voting upon. Alas it appears that the damage is done and it is going to be a long road to get this sorry act denuded. I will contact my senators and congresspersons to help in this fight as it is hurting the small custom luthiers as well as placing a stifiling effect on the lumber and shell import industries. It really makes no sense to me that an item that is taken for food should not be fully utilized and I am speaking of the shell industry on that account. Off my soapbox and thanks for the chance to express myself. Rob