[August 31, 2011 update: We've just posted a podcast with this article's author, John Thomas, relating to the Gibson Guitars factory raid, CITES and the Lacey Act. Check it out here.]
Coming into Los Angeles
Bringing in a couple of keys
Don't touch my bags if you please
Mister Customs Man
Man, this is not going to end well. I’m on my way to Europe and I’m standing in the security line at the airport, sweating bullets, with a large object strapped to my back. I’m worried about violating CITES, or the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The object strapped to my back is a guitar, and I’m concerned that I’ll be accused of trying to illegally export products from endangered fauna, like elephant ivory, or flora, like Brazilian rosewood.
Now, I really have no reason to worry, but Arlo Guthrie’s 1969 paean to smuggling (something other than wood) is feeding my paranoia. I had planned on taking one of my old Gibsons on the trip; they have Brazilian rosewood fingerboards and bridges. I called the U.S. Fish and Wildlife Service (USFWS), our CITES enforcement authority.
“You’ll need a permit, and a permit takes at least 60 days to obtain, and more likely at least 90 days,” an employee told me.
“Uh,” I replied, “what happens if I don’t get a permit?”
“Your guitar will probably be seized, sir, and you won't be able to get it back.”
Hmmm. So, I carefully examined all of my guitars for traces of Brazilian rosewood, ivory and other CITES substances and settled on taking my National M2. Until plywood becomes classified as an endangered floral species, this guitar should be able to cross international borders with ease. You might not want to try this with that old prewar herringbone of yours, though. If your guitar has even the smallest scrap of a listed species, unless you’ve got an export permit from the U.S. (which also works as a re-import permit) and import and export permits from your destination country, you can say goodbye to your holy grail.
See, if you decide to take that old beater ‘bone to do a bit of pickin’ on the beaches of the French Riviera, and someone does look in that case, your guitar will be seized--forever--with no possibility of return or reimbursement. Even if you belatedly obtain the import or export permits, USFWS will not return it, because you’ll be a known violator of international law. USFWS can’t sell the seized guitars to the public because that would be the equivalent of supporting illegal trade.
So, what do the Fish and Wildlife folks do with seized guitars? My mind’s eye sees them off by the side of a stream playing a bit of bluegrass on a bunch of prewar Brazilian rosewood guitars, fishing poles stuck in the ground. It’s a tough job, but someone’s got to do it.
OK, that doesn’t really happen. As Sandra Cleva, spokesperson for the USFWS law enforcement division, explains, “The Fish and Wildlife Service has a large repository of seized items. We do sometimes have auctions, though we haven’t had an auction since 1999. But we can only sell items that could have been legally imported for commercial purposes, if the importer had gotten the proper permits.”
CITES has three categories of items. Guitar-friendly stuff like Brazilian rosewood, ivory and tortoiseshell is in Appendix I, the most restricted category. “Appendix I species can never be imported for commercial purposes,” adds Ms. Cleva. “So, we wouldn’t sell those items. We would keep them for educational purposes. For example, if we seized an instrument containing tortoiseshell, we might include it in an educational package to send to a zoo as part of an outreach program to demonstrate activities that have led to the endangerment of the sea tortoise.”
So, next time you visit the zoo with your kids, you might point behind the glass to a stack of tortoiseshell picks. “See what daddy lost?” you’ll say. “Do as daddy says, not as daddy does. Always get your CITES permits!”
Inside the Treaty
If you’re scratching your head and wondering how we got to this state of affairs, you might wonder instead why we didn’t get here sooner. Over the past 400 years, unregulated international trade in plants and animals has extinguished more than 700 species. Gone the way of the dodo are more than 140 other species of birds. The European bison, English wolf and dwarf elephant have also disappeared from the European continent. North America has lost its mammoth, giant beaver and American lion. We’ve similarly decimated our flora. Varieties of ferns, orchids, grasses and oaks will never again be seen.
In the 1960s, the international community acted, but, apparently, treaty drafters are no quicker than luthiers. The General Assembly of the International Union for Conservation of Nature and Natural Resources first met in 1963 to discuss drafting a treaty concerning trade in threatened wildlife species, but it took until 1973 to hammer out the language. Then, 80 countries met in Washington, D.C., to sign the completed Convention, which became effective in 1975. Today, 172 of the world’s 194 countries have signed CITES. Only a few countries in western Africa and western Asia have not.
So, is CITES saving the planet? “It is helping,” says Linda Davis-Wallen, wood buyer for the Martin Guitar Company, “but there is a lot of illegal logging, and there are a lot of forged CITES permits out there. We really have to be careful.” Martin is quite committed to CITES, but it certainly hasn’t made Martin’s life easier. “We import raw woods and export finished guitars,” says Davis-Wallen. “It takes 60 to 120 days to get each permit, and we have to import and export through the CITES-specified ports. So, for example, we can’t fly Brazilian rosewood into Allentown, [Pennsylvania], the airport nearest us, but have to fly it into JFK and then fly it to Allentown.”
Vintage-guitar guru George Gruhn amplifies Davis-Wallen’s concerns. “Look, this thing is a nightmare,” he says. “It’s cumbersome, illogical and nearly unintelligible. It’s hard enough to figure out what permits to obtain in the U.S., but it’s almost impossible to figure out the necessary permits to get a guitar in and out of another country. CITES only establishes a ‘floor’ of restrictions. The member countries can establish any other rules as long as they’re stricter than CITES. Imagine a touring musician who plans to visit several countries with a guitar with Brazilian rosewood back and sides. It would be almost impossible to comply with CITES and do the tour.”
Armed with Gruhn’s insights, I contacted the CITES secretariat in Geneva for practical advice and spoke to a fellow who preferred to be identified only as “spokesperson.”“Travelers,” he told me, “should be most concerned when traveling in or out of the U.S., E.U., Australia or Japan because those countries have the strictest enforcement efforts.” “And,” he added, “They have domestic laws that are stricter than CITES. You’ve got to pay very close attention to the legal requirements”
Maybe we’d better read this thing.
CITES applies to “export, re-export, import and introduction from the sea.” Through its three appendices, CITES establishes a hierarchy of protection for threatened species of plants and animals. Appendix I includes species “threatened with extinction, which are or may be affected by trade.”
To move one of the listed species across the border of one of the 172 signatories, you’ll need an export permit, which will be granted only if “a Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species” and the item “was not obtained in contravention of the laws of that State for the protection of fauna and flora.” In addition, you’ll need an import permit from the destination country, obtainable upon proof that importation isn’t for “primarily commercial purposes.”
Appendix II lists species that are “not necessarily now threatened with extinction” but “may become so unless trade in specimens of such species is subject to strict regulation.” Appendix II items only require an export permit and may be transported for commercial purposes--so long as the sale does not make the extinction of the species more likely.
Appendix III lists species that are “subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation.” You need an export permit here, too, but the only condition is that exportation doesn’t violate the law of the country from which you export. (If you live in a country where trading in a particular substance is legal, you still can’t get it from a country where trade is illegal.)
“OK,” you’re saying, “it sounds like lawyers wrote this thing, so there must be some loopholes, right?” Right. CITES contains seven exemptions. Five of these exemptions--including loans between scientific institutions or items that are “part of a traveling zoo” (my family not included)--are very unlikely to apply to the transport of your guitars, but the remaining two just might.
First, your item is exempt if you acquired it before CITES listed it. Second, CITES will exempt “specimens that are personal or household effects,” so long as you didn’t acquire the items outside of your home country. This exception, however, does not apply to Appendix I species, which, as we’ll see, loom large in the world of vintage guitars.
Inspecting Your Instrument
In the United States, CITES is not a self-contained document; it works in tandem with the Endangered Species Act (ESA) and its regulations. The ESA will make you think at least twice about trying to sneak through customs your vintage guitar and its ivory and Brazilian rosewood appointments. The penalties for a knowing violation of ESA and, by the same token, for violating CITES, are fines of up to $50,000 or imprisonment for up to a year, or both. (This “knowing” refers to knowledge in the legal sense. It doesn’t matter if you know that you’re violating CITES or ESA--or even that you know they exist--but only if you intentionally, rather than accidentally, take your guitar across borders. Yikes!)
Simply put, the USFWS is on the lookout for guitars bearing listed species. The first photo on the USFWS’ Timber Import/Export Requirements fact sheet is of the back of a Brazilian rosewood guitar. That same photo is also featured on the first page of the Antiques sheet. Finally, the permit form for the export or re-export of plants specifically requests that the “vintage guitar purchaser and exporter” and “guitar manufacturer/exporter/lumber exporter” certify that the guitars at issue are made of “pre-convention Brazilian rosewood.”
The CITES appendices list approximately 5,000 animal species and 28,000 plant species, but, fortunately, only a few of these appear on guitars. Three Appendix I species are sometimes found on guitars, especially on vintage guitars, so let’s give your guitar the once-over. First, check the front for elephant ivory saddles, nuts, bridge pins and, as on pre-1920 Martins, binding. Remember, it doesn’t matter whether the stuff is old or even fossilized; it’s still elephant ivory that’s subject to the ban. (However, old stuff, if old enough, may qualify for an exemption, discussed below.)
OK, now let’s search for tortoiseshell from the hawksbill turtle (Eretmochelys imbricata), also an Appendix I species. It’s very unlikely that the binding on your guitar is made of real tortoiseshell--synthetics have been available since before 1900--and unless Tony Rice gave you his ol’ Martin #58957, on which he put a real tortoiseshell pickguard, your pickguard is probably synthetic, too. On the other hand, you may have real tortoiseshell flat picks in the case pocket.
Now for the big one. Flip over your prewar guitar, your modern masterpiece, and gaze lovingly at that gorgeous Brazilian rosewood (Dalbergia nigra). Not sure if it’s Brazilian rosewood? Do you, like me, have difficulty distinguishing Brazilian from, say, Madagascar rosewood or cocobolo? No problem, just take out your handy, dandy, 210-page CITES Identification Guide: Tropical Woods (available at the USFWS website). Entry 20 is accompanied by a magnified photograph and a general description: “dark brown to black with darker streaks; hard and heavy.” For the extra curious, the guide provides a detailed description of the wood’s “parenchyma,” or cell structure (“banded apotracheal with prominent bands irregularly spaced; with aliform paratracheal; parenchyma arrangements in this species can vary considerably”). Oh, and Brazilian rosewood has a “pleasant, faintly sweet or spicy odor.”
Still clean? We’ve got three more inquiries. Big-leaf mahogany (Swietenia macrophylla)--“heartwood reddish brown; moderately hard and heavy,” usually referred to as Honduran mahogany--is listed in Appendix II. But in this case, CITES only applies to raw wood, not finished guitars, so you need not worry about getting permission for international travel with your mahogany guitar.
On May 3, 2007, South African abalone, also known as perlemoen, was added to Appendix III, making it the only species of abalone to appear in CITES. As an Appendix III species, it cannot be removed from South Africa without a permit, but don’t worry: South Africa doesn’t export many guitars, and guitar makers don’t use perlemoen for inlays anyway.
That takes care of CITES, but in the U.S., we still have to deal with the Endangered Species Act. (Remember, CITES is a floor; each signatory nation can apply more rigorous export or import standards.) In 2001, the U.S. placed white abalone (Haliotis sorenseni) on the ESA list, and Section 9 of the act makes illegal any importation, exportation or removal from the sea. The only recognized exceptions are for scientific uses. So, if you’ve got white abalone on that fingerboard, the guitar stays home. Fortunately, nearly all abalone used for guitar inlays is of the pink, red or green variety.
Permits, Ports and Seizures
If your guitar checked out for tortoiseshell, ivory or Brazilian rosewood, you’ll not be able to legally get it in or out of any of the 172 member countries without a permit. And, because these are Appendix I species, you’ll only get a permit if your guitar predates CITES’ application to the species in question. For ivory, the application date is June 1, 1947. Hawksbill turtle was included when CITES first came into effect on July 1, 1975. Brazilian rosewood was added on June 11, 1992.
Guitars built before these dates are eligible for an exemption. Yet, the crucial date isn’t the manufacture date of the guitar or the harvest date of the CITES-protected stuff on the guitar. The controlling date is actually the date when the protected stuff was fashioned into its current form. If that fossilized ivory nut fell off a mastodon, say, 6 million years ago, was dug up 200 years ago and used for a piano key in 1820, but your luthier fashioned that old piano key into a nut and placed it on you guitar last month, that ivory is a month old for CITES purposes--and subject to Appendix I restrictions. The same goes for that 200 year-old tortoiseshell hairbrush handle that you fashioned into a pick in the ‘80s.
(By the way, should you be questioned, you can’t simply pry off that nut or pickguard and continue on your way. The entire guitar is seized and, you lose it forever.)
Let’s imagine now that your guitar has some protected substances on it, but they all predate their CITES listing. Before you carry your guitar to Canada to do some parking-lot picking at a bluegrass festival, you’ll still need a permit. Otherwise, upon your return, USFWS officials might look in your case and take your guitar. Can you then secure the permits and get your guitar back? No. You’ve already violated CITES. “Well, if we allowed this,” says USFWS’ Sandra Cleva, “there would be no incentive to get the permits. Plus, CITES just doesn’t have a procedure for obtaining permits retroactively.”
What happens if your guitar doesn’t contain any CITES substances, but the government seizes it anyway? You have to prove that the government was wrong. That’s right: As long as the USFWS can show that it had “reasonable grounds” to believe that your guitar’s headstock overlay, for example, was Brazilian rosewood, you’ll have the burden--not the USFWS--of proving that it’s really ebony or Madagascar rosewood.
You’ll have to hire an expert to testify at a hearing in the federal courthouse in Washington, D.C. And even then, just how are you going to prove exactly when your guitar’s ivory saddle--the one you scored off of eBay--was actually fashioned into a saddle? You simply can’t.
Want yet another CITES horror image? Let’s say you’re well versed in CITES and you’ve obtained the proper permits from the USFWS for a trip up to Canada: export from the U.S., import into Canada and export from Canada. (You don’t need an import permit to get your guitar back into the U.S.; three permits will do it, oh, happy day!).You flew out of JFK into Toronto, but on your way back, you flew into Cleveland to take in the Rock and Roll Hall of Fame. You’re stopped at Cleveland’s Hopkins International after USFWS looks in your case and identifies the Brazilian rosewood on the back and sides of your vintage Martin. You smartly whip out your permits. Are you OK? Uh, maybe not. See, there are only 14 authorized ports for importing or exporting CITES species: Anchorage, Atlanta, Baltimore, Boston, Chicago, Dallas-Fort Worth, Honolulu, Los Angeles, Miami, Newark/New York, New Orleans, Portland, San Francisco and Seattle. Cleveland, despite its magnetic lure, is not one of them.
“I can’t figure this one out,” I tell Ms. Cleva of the USFWS. “I can’t bring the Brazilian rosewood in through the Cleveland airport, but I can’t get it back out, either. So, what happens? Is my guitar seized forever? Do I get special permission to go back to Toronto to fly in through JFK? Or does USFWS seize it and transport it for me to JFK, where I can get it after paying the transport and storage fees?”
“Hmmm,” she replies, “I’ve never thought about this or heard about this. I just don’t know.”
She doesn’t know?! If the USFWS law-enforcement spokesperson doesn’t know, how can they expect us to know? You’ve stumbled into the legal shadows between the Convention, ESA and USFWS regulations. Maybe your lawyer can help you find your way out--at $250 an hour.
“Flying in a Big Airliner… Could We Ever Feel Much Finer?”
I’ve still got Arlo’s tune running through my head and I’m thinking that this Orwellian diatribe of mine is merely alarmist speculation. After all, I’ve carried my guitar through international customs on four different recent occasions, and no one has ever looked in my guitar case. Maybe the USFWS folks and the enforcement authorities in other countries scrutinize the big shipments by guitar manufacturers and dealers, but they just don’t care about the little guys traveling with a personal instrument.
Guess again. Recently, George Gruhn forwarded to me an email from James Fry of Long & McQuade, Canada’s largest chain of guitar retailers. “Two months ago,” writes Fry, “I sent a Taylor guitar back to Taylor from Canada for warranty repairs. The rosette had abalone inlay in it. A week later, I got a call from someone at the U.S. Fish and Wildlife Service office in Montana.” They’d pulled the guitar, noticed the abalone shell in and indicated to Fry that he needed special paperwork and a license to ship it across the border. They also told him that the regulation had been in effect for a couple of years or so, probably referring to the addition of white abalone to ESA in 200, and assured him that they had “tests” to detect the real thing.
“Another story to add to this nightmare,” Fry continues. “Our music-store shipping department shipped a customer’s Martin D-42 back to the Martin factory for warranty work last month. Today, we got a letter in the mail from the Department of Interior, U.S. Fish and Wildlife Service, with a fine for $225 for ‘knowingly shipping abalone shell’ across the border without proper U.S. Fish and Wildlife paperwork. The poor guy in our shipping department has his name on this fine. If he wants to contest it, he has to show up in federal court in the U.S. to do so.” (Fry has since told me that the shop paid the fine, but USFWS has not released the guitar.)
Let’s consider the USFWS claim. The only abalone species listed in CITES is South African abalone, which is in Appendix III. The only limitation is that it can’t be exported from South Africa without a permit, so that can’t be the problem with these two guitars. What about white abalone, which is listed on the ESA? Remember, the USFWS has performed “tests” and concluded, apparently, that the guitars have white abalone on them.
As we know, the burden of disproving USFWS’ tests and judgments lies with the guitar owners. In search of this rebuttal evidence, I worked the telephone. Mike Tobin of Taylor Guitars confirms that the Taylor did not contain white abalone: “No. We use green and red abalone. In the early 2000s, we also used agoya shell on our koa and walnut series, but we’ve never used white abalone or the South African stuff.”
According to Martin’s Dick Boak, the D-42 didn’t have white abalone on it either. “No, we don’t use white abalone,” he explains. “We use mother-of-pearl and red and green abalone for our inlays. But don’t take my word for it. Call Pearlworks; they do our inlay work.”
A few moments later, I’m chatting with Doug Aulson of Pearlworks, in Charlotte Hall, Maryland. “Oh,” says Aulson, “we don’t use any white abalone. We use green and red and we’ve got good documentation on everything that we use. I’ll bet that what Fish and Wildlife saw that looked white was mother-of-pearl.” I’ll take that bet.
To avoid such nightmares, George Gruhn has simply stopped shipping internationally. “It’s not too hard to figure out a better way to deal with this,” he says. “You get a ‘passport’ for your instrument, which you carry with you. It gets stamped when you cross international borders. Customs authorities everywhere can track your instrument, and you don’t run the risk of mistaken or overzealous customs authorities seizing it.
What a great idea! Will the CITES countries consider this? “No,” says the secretariat’s spokesperson. “We feel that CITES is working well as it is.” Really?
Perhaps there’s hope. At the June 2007 CITES meeting in The Hague, the nation of Brazil proposed adding pernambuco (also known as pau-Brazil and brazilwood) to Appendix II. This wood is used for virtually every high-end violin bow. Classical musicians and violin dealers everywhere rallied, urging the secretariat not to list pernambuco, and they prevailed. Finished products will not be included in Appendix II, only raw wood products such as “logs, sawn wood and veneer sheets, including unfinished wood articles used for the fabrication of bows for stringed musical instruments.”
Is this decision a harbinger of future CITES verdicts? “I do not think so,” the spokesperson said. “It depends on whether we think that trade in the timber alone or trade in the instruments also threatens a species. With instruments, most think that trade in the instruments themselves is a threat, so I do not think that we will see more exemptions.”
What’s our solution? We’ve got at least two potential examples of mistaken species identification by the USFWS, plus a mandate to appear in Washington to disprove the Service’s suspicions. George Gruhn’s “passport” suggestion seems promising, but until then, I’ll take one of those carbon-fiber acoustics when I go “flying in a big airliner”--but not the deluxe model with the pearl rosette…
Maybe I’ll take up the kazoo instead.
April Fools Day 2010: Lacey Act Amendments
On April 1, 2010, Mister Customs Man gained a few more responsibilities. In 2008, in response to reports of illegal logging around the globe, Congress dusted off the Lacey Act, America’s first wildlife protection statue. Congress enacted the Lacey Act 1900 to address interstate trafficking in poached birds and other game. In 1935, Congress went global by broadening the Act’s reach to include wildlife taken in violation of the laws of foreign countries. In 1981, Congress added plants and “plant parts” obtained in violation of US law. Two years ago, Congress reshaped the Lacey act’s coverage to render it symmetrical by including plants and “plant parts” obtained in violation of the laws of foreign countries. Those 2008 amendments went into effect, perhaps fittingly, on April Fools Day, 2010. The Lacey act now makes it illegal to obtain and/or transport plants or animals obtained in violation of any domestic, foreign, or international law.
To see how these amendments affect the guitar owner, let’s consider the current status of Madagascar rosewood. Madagascar, located off the Southeast Coast of Africa and the world’s fourth largest island, is home to the rosewood that many furniture makers and, of course, luthiers began to favor as a substitute for the Brazilian rosewood rendered difficult to obtain by CITES. In response to devastating logging and the lobbying of environmental groups and foreign governments, the Madagascar government made logging its rosewood trees in its Marojejy and Masola National Parks illegal. Alas, the officials charged with enforcing the laws are easily convinced to ignore illegal logging. So, for the going rate of $2.50 US per day for loggers and some modest bribery costs, wood merchants are able to move $167 million in Madagascar rosewood annually. Some of that wood makes its way into guitars. Some of it, as the Gibson Corporation discovered, does not. In November of 2009, US Fish and Wildlife officials raided Gibson’s facilities in Nashville and seized raw wood, guitars, and computers. Officials contend that the wood was obtained in violation of Madagascar law, making it illegal under the Lacey Act to import into the US. The case remains under investigation and Gibson has pledged to cooperate with US officials.
So, imagine that a scrap of what appears to be Madagascar rosewood currently resides in your guitar as its back, sides, fingerboard, or bridge. What is your liability? To begin with, if you have taken the instrument outside of the US, you’ll need to file a Lacey Act Import Declaration when you bring it back. You can find the form here (pdf download). As you’ll see, the Import Declaration requires that you list every plant or animal species that your guitar contains. You have to list the substance by scientific name, the amount of the substance (by weight) in your guitar, and the country of the substance’s origin. What happens if you lie on the form? It’s a felony, subjecting you to a fine of up to $250,000 (or $500,000 for corporations), prison for up to five years, and forfeiture of your guitar. Indeed, any knowing violation of the Lacey Act brings those penalties. And, even if you do not knowingly violate the act, you’ve committed a misdemeanor if you failed to exercise “due care” in trying to find out what plant and animal substances the manufacturer used to make your guitar. The penalties are a fine of up to $100,000 ($200,000 for corporation), a one year prison sentence, and forfeiture of your guitar.
Suppose that you simply did not know that the bridge was Madagascar rosewood? Or, you knew that it was Madagascar rosewood, but had been told by a credible source, like its manufacturer, that it had been harvested from the legal regions of Madagascar. The penalty is forfeiture. Yes, that’s right. The Lacey Act imposes what the law calls strict liability. Even if you have no knowledge, despite herculean efforts to obtain it, that some piece of your guitar, no matter how small, was obtained illegally, you lose your guitar forever. Oh, and you’ll be fined $250 for that false (or missing) information in your Lacey Act Import Declaration.
That kazoo seems better all the time.
www.cites.org (Home page for the Convention on International Trade in Endangered Species of Wild Fauna and Flora.)
www.fws.gov (Direct link to the section on the U.S. Fish and Wildlife Service's website about importing or exporting guitars into or from the U.S.)
[Publisher's note: This article by law professor and frequent FJ contributor John Thomas originally appeared in the Fretboard Journal #11 alongside an article about Brazilian rosewood. Due to some updates in the Lacey Act and continued questions about just what guitars are/are not safe to transport out of the country, we decided to publish it online, with updates. Enjoy. -JV]
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