Is America getting silly now?

[simonm]

There is some interesting reading here http://www.delcamp.us/viewtopic.php?f=107&t=61960 about this. A member who says he has been in the import/export biz for 10 years adds his views and then answers some points made by another member.

[Kim]

Nick put up the same link a few post back Steve. That guy may know 'his' business but he clearly does not know Gibson and LMI's business. He makes a lot of assumptions that are plain wrong and fills in many gaps with suggestion that have nothing at all to do with this particular issue.

From decamps link above:

And my synopsis of this affidavit:
1) the fingerboards were illegally exported from India (classified under Chap 4407 - which is prohibited export from India)

2) the entry listed the wrong consignee, and should have stated Gibson Guitars, not Luthier Mercantile (another violation)

3) the goods were incorrectly classified under 4408 as wood veneer sheet (which *would* have been legal to export from India)

4) the shipment was accompanied with a document which falsely classified the goods as finished parts of musical instruments (Chap 9902)

5) The affidavit lists 11 other shipments with misclassified Indian Rosewood

From OLF link: http://www.luthiersforum.com/forum/view ... &start=250

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.”

Chuck Erikson has been through all of this with FWS when he had them go over his business premises Duke of Pearl. That ordeal I believe went on for a couple of years and cost him lots of money so Chuck was forced to become quite versed in the realities of the Lacey act from the inside out. Go to the link I have provided and look over the 11 pages for Chuck's input..it really is the only information coming from 'anyone' with any true experience of this shit.

Seeing as we are on another page with this I will add the quote from Chuck that Peter put up earlier so people get the nuts and bolts of this:

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.

The bottom line here as I see it is that FWS have no grounds upon which to apply the Lacey act because no breech of Indian law has taken place according ti 'their' translation and that is the only valid translation regardless of how FWS reads it.

Cheers

Kim

[kiwigeo]

Good stuff Kim.......

[peter.coombe]

Good stuff Kim.......

Yep.

I can't believe the amount of misinformation and lies and political BS flying around the Internet about this issue. The link above is a good example of this. Many forums have shut down discussion because it degenerated into a political shit fight. The mandolincafe shut down discussion so we can't discuss it there. Thankfully luthiersforum.com kept it open and the facts have emerged, although a lot of political BS also found it's way there as well to start with. I told them to back off and thank goodness the politics then stopped.

If you want the facts about the raid on Gibson, read Kim's post. If you want more information about Lacey and CITES, send me a PM with your email address, and I will email you a heap of stuff from Chuck for bedtime reading. Warning - it is over 6Meg in size.

Meanwhile I have been preparing the paperwork for my mandola shipment to the US to ensure it will be legal. 3 hrs so far and still not finished. Really makes you wonder if it is all worthwhile.

Peter

[kiwigeo]

Meanwhile I have been preparing the paperwork for my mandola shipment to the US to ensure it will be legal. 3 hrs so far and still not finished. Really makes you wonder if it is all worthwhile.

Peter

It'll soon reach the stage where things resemble health and safety on oil rigs. The pre-job paperwork takes longer to fill out than it takes to actually do the job.

[Nick]

It would seem that, similar to an air crash, a number of smaller factors have contributed to the outcome- the F&W's seizure, of what would seem quite clear from the info Natalie Swango gives, as a legal shipment. The F&W guy must have been rubbing his hands together with glee when he thought he'd got Gibson (as per Chuck's veiwpoint that they wanted Gibson after the "Madagascar affair"). Hopefully the judge see's it for what it would appear to be, a simple paperwork mix up and an F&W agent far too keen to prosecute! Maybe with Gibson being such a big company that it will force authorities to have a closer look at the act & how it is enforced & the whole issue relaxed back to within the bounds of common sense.

[peter.coombe]

More news. The Indian wood dealers are getting their government involved.

Indian wood exporters, led by Timber Exporters' Association, have sprung into action to resolve the issue. "The Justice Department has a problem with incorrect declaration of wood classification. The exporters' association is in contact with the Indian government to settle the classification issue," said Gulab Gidwani, promoter of US-based timber exporter Exotic Woods.

India's Timber Exporters' Association members say they will seek the intervention of Department of Foreign Trade and Chemical and Allied Export Promotion Council of India (CAPEXIL) to settle the issue. Association members are also planning to take up the issue with the Indian Embassy in the US.

Almost all foreign manufacturers of musical instruments import premium Indian rosewood and ebony because of their colour and texture. Besides, experts say, notes like the 'bassy twang', 'string thump' and 'hollow thump' are better played on string instruments made from Indian rosewood.

US accounts for over two-fifths of the global guitar sales at over 2,000 units a week. A normal instrument retails between $100 and $300 while a premium guitar is priced at over $2000.

The 120-year-old company, which own brands such as Baldwin and Epiphone, buys 2.75- to 3-inch-wide fingerboard stocks - usually 5,000-10,000 boards at a time - from Indian wood exporters. Fingerboards are the part of a stringed instrument against which the fingers press the string to vary the pitch.

As of now, Gibson Corp is manufacturing instruments from its old stock. "If the crisis is not resolved, we'll have to look for alternative sources from where the wood could be legally purchased," Mr Juszkiewicz said. Last week's raids have caused a loss of $1 million to Gibson Corp.

[Kim]

That article actually has 2 pages Pete, Chuck's link leads to the second page but it can be easy missed as it is all a bit too Englian in the way it has been written. The point is still made though and I think the pressure on the USA from within and from without is going to force them to address how the USFWS has handled this matter. Anyhow, here is the Indian Times News article from page one if interested.....wonder what the tone of their tapping policy is??? Baahhh! probably owned by Rupert's rupees just like all the rest.

http://articles.economictimes.indiatime ... uszkiewicz

Cheers

Kim

[peter.coombe]

More interesting stuff on the Madagascar Ebony raid. On the face of it, looks like Gibson is in real trouble with this.

http://www.scribd.com/doc/63755524/US-v ... -to-Strike

It looks to me like F&W are using the same arguments for the Indian Ebony as they are using for the Madagascar Ebony, i.e. it is unfinished and therefore is illegal. However, there is a very big difference. Ignoring what different countries consider to be "finished" wood, the Indian wood is FSC certified, whereas the Madagascar wood was contraband, and Gibson knew it. It may have been legally exported from Madagascar according to Gibson, but it was originally contraband wood and therefore is illegal under Lacey. If true, then I don't have a problem if Gbson goes down over the Madagascar wood.

[Kim]

the Madagascar wood was contraband, and Gibson knew it. It may have been legally exported from Madagascar according to Gibson, but it was originally contraband wood and therefore is illegal under Lacey. If true, then I don't have a problem if Gbson goes down over the Madagascar wood.

Its a big call Pete because that document is the US Governments motion to have the courts strike Gibson's claim of ownership to the Madagascan wood so they would of course dress it to do that any way they can. For instance when the document describes "significant steps of further processing" in dispute of the "finished product", (i.e. wooden parts for guitars) claim by Gibson, it starts out first describing how a Gibson employee removes the planks of rough sawn wood to a drying area from where they are then sanded, shaped and slotted etc, etc, etc, and go on to describe each individual stage of the production process, including buffing, fitting of strings, set-up, and final inspection of the completed instrument as if they were all part of making a fucking fretboard. I am not suggesting this instance of exaggeration, or what I see as fudging of the truth, is somehow going to influence the eventual outcome, I am just pointing out that it does exist within that document and therefore is likely to have influenced the entire submission. So until 'all' of the facts have been presented to a magistrate from 'both' sides, it is hard to draw any conclusions.

From what I have read (more of a scan than a consuming read) the guy that set up the shipment was in Madagascar on behalf of "Several large guitar manufacturers that included Gibson Guitars". I take that to mean that he was some kind of free lance procurement contractor who sources what his customers want and structures the deal rather than a Gibson employee as is suggested. With that, how much knowledge Gibson had of the grey market source is anyone's guess, but, they would have certainly been aware of the political situation in Madagascar and the constrains in trade so the whole thing becomes very 'grey' in more than one way.

I think Gibson's big fall down in all of this lay in the fact that in the mid 90's, long before this all blew up in their face with the 2008 changes to the Lacey act, they had requested and received a ruling from the US Government clarifying what constitutes duty free "sawn wood" products and what is considered a "finished wooden product" attracting a 5.6% import duty. Once they knew the difference, Gibson then started submitted all documents for import of fretboard blanks from that point forward coded with a description that made them "sawn wood" which one would assume was done to avoid the 5.6% duty......... and didn't that turn around and bite them on the arse.

They can't now argue that the Madagascar wood was "finished products" but that is what they are doing, and for that alone they will forfeit ownership. The FWS case to have Gibson's suite for return of confiscated goods struck down is that Gibson now fail to hold standing of ownership to seek that return. This is because the wood can be seen as "illegally imported" regardless of Madagascan law or its endanger species status. It was misrepresented on a customs declaration and therefore is "illegally imported plant products" which under the Lacey Act must be confiscated.....bit of a check mate for Gibson on that one me thinks.

As I posted yesterday at the OLF, I do not see how any of this can translate over to the Indian shipment. First of all Gibson was not the consignee, LMI was. Second, no international law was broken. Thirdly LMI's clearance agency had submitted the paperwork that contained incorrect import description codes not Gibson, and the big one. The USFWS failed to follow procedure in vetting those documents and allow for correction upon prior notification of the error.

Cheers

Kim

[kiwigeo]

From what I have read (more of a scan than a consuming read) the guy that set up the shipment was in Madagascar on behalf of "Several large guitar manufacturers that included Gibson Guitars". I take that to mean that he was some kind of free lance procurement contractor who sources what his customers want and structures the deal rather than a Gibson employee as is suggested. With that, how much knowledge Gibson had of the grey market source is anyone's guess, but, they would have certainly been aware of the political situation in Madagascar and the constrains in trade so the whole thing becomes very 'grey' in more than one way.

I too haven't read the document in detail but on the first page there is a quote from an email from Nix who describes himself as a "Gibson employee and wood specialist". A few pages on there are quotes from emails from Nix to other Gibson employees in which he discusses the "grey market".

[peter.coombe]

Kim

No matter what, Gibson were taking a huge risk importing wood from Madagascar. It was a disaster waiting to happen. I did read somewhere that at least 80% of the wood logged in Madagascar is illegally logged, much of it from National Parks. The government is unstable, possibly illegal, there is rampant corruption, violence etc etc. High risk written all over it. I don't understand why they decided to go ahead regardless.

[Kim]

From what I have read (more of a scan than a consuming read) the guy that set up the shipment was in Madagascar on behalf of "Several large guitar manufacturers that included Gibson Guitars". I take that to mean that he was some kind of free lance procurement contractor who sources what his customers want and structures the deal rather than a Gibson employee as is suggested. With that, how much knowledge Gibson had of the grey market source is anyone's guess, but, they would have certainly been aware of the political situation in Madagascar and the constrains in trade so the whole thing becomes very 'grey' in more than one way.

I too haven't read the document in detail but on the first page there is a quote from an email from Nix who describes himself as a "Gibson employee and wood specialist".

Hmm, must of missed that one Marty. On the first page all I can see is were the US rep who has submitted the document to have Gibson's challenge thrown out has described Nix as a "Gibson employee and wood specialist".

The document then quotes Nix: "I spent two and a half weeks in Madagascar this June [2008],I represented our
company along with two other guitar manufacturers."

So how does that work? You work for Gibson but they tell you to also represent the interest of two of their competitors because Gibson are such nice people that they want to make sure everyone is on a level playing field and has their own fair share of hard to fine wood??? Sounds to me like something that a guy who lists, spraying the finish, buffing the guitar, fitting the machine heads, fitting the bridge, fitting the strings and making sure everything plays OK all with alphabetic dot points to describe the process of making a completed fretboard would come up with.

I need to read more to be sure but won't because I can't be bothered and its a moot point anyhow, but as I recall the latter emails you refer to were sent by Nix to Nagel & Co in Germany whom eventually on sold the wood to Gibson. It was 'Nix' who 'allegedly' suggested that Gibson would be interested in filling their short term needs with grey market wood, not Gibson. I see nothing of that email or any other from Nix direct to Gibson. It may be that I scroll too fast but the fact is that these emails are refereed to a number of times by the US Gov in their submission but I cannot see any of them among the exhibits attached to the affidavit. The only emails I see from Gibson are accountancy based such as confirmation of wire transfer to Theodor Nagel GMBH & Co KG etc.

I maintain that the core purpose of that entire 147 page document is a best effort, boots and all, fudged truths, exaggerated attempt by one side to sink the other. It simply cannot be viewed as a summary of fact. We have not seen anything from Gibson to defend the very many suppositions that have been made when knitting the dot points together to fit their story, and we know nothing of any omission or mitigations and we do not know why the emails from Nix have not been made availability. But in my view none of it will matter because Gibson forfeited the shipment as soon as they filled out the import paperwork to dodged the 5.6% duty and called them sawn wood because their whole defence is that they are finished wood products and they just can't have it both ways...so in the end they didn't need fudged truths from the US Gov to sink them because they managed to do that all by themselves.

P.S. If you do happen to find the alleged emails from Nix in that document, could you please note the page numbers so we can have a look see.

Cheers

Kim

[Kim]

Kim

No matter what, Gibson were taking a huge risk importing wood from Madagascar. It was a disaster waiting to happen. I did read somewhere that at least 80% of the wood logged in Madagascar is illegally logged, much of it from National Parks. The government is unstable, possibly illegal, there is rampant corruption, violence etc etc. High risk written all over it. I don't understand why they decided to go ahead regardless.

I agree Peter, that's why I pointed out that regardless of all else Gibson would have been aware of trade restrictions and the political situation in Madagascar. So yes, it was indeed "High Risk" as you say. My point above has not been to suggest that Gibson had been lawful and proper or illegal and felonious. I am just stating that Gibson could quite possibly have been completely unaware of all those details they are now being accused of taking part in. There seems an awful lot of gap filler holding that paper together and we should not assume too much.

Perhaps Gibson was told the shipment was old euro stock who knows? Then why would it need to be dried I hear asked?? The FWS agents allege that some of the wood had been undergoing a drying process at the time of the raid. They state that this is clear indication that the wood was still green from being illegally logged..Well it could also have picked up a shitload of moisture from being stuck on board the leaking Liverpool fucking Express for a few months, who knows??...See what I mean, we cannot learn anything much from that document except that it clearly represents the best ditched efforts of an accuser with much to loose, at making Gibson Guitars look like a great big evil environmental vandal.

Cheers

Kim

[kiwigeo]

Kim,

If you do a bit of trawling one soon gains the impression that Nix is an employee of Gibson rather than a free lancer.

http://www2.gibson.com/News-Lifestyle/B ... n-USA.aspx

If you take a look at the above site and the picture and caption at bottom of page there's this:

"Here is (L to R) Gene Nix-Gibson Wood Specialist; Jack Barrett - CEO of Rutland; Herb Jenkins - Gibson Purchasing; Don Smith - Rutland."

And there's this: http://www.spoke.com/info/pBYItBK/GeneNix

Cheers Martin

[kiwigeo]

I too haven't read the document in detail but on the first page there is a quote from an email from Nix who describes himself as a "Gibson employee and wood specialist".

[/quote]

My mistake....On Page 1 Nix is described in the court document as a "Gibson employee and wood specialist" immediately before a quote from an email written by him (exhibit 1-4). To whom the email was directed isn't specified on the same page but I would say it was to someone at Gibson but further on in the document there is reference to emails from Nix to others at Gibson summarising his trip to Madagascar.

I'm not on Facebook so cant download the document and satellite link I'm on is so slow scrolling through the document is a pain.

As already stated I haven't read the whole document but if Nix is a Gibson employee and other Gibson employees knew that the ebony shipment was a grey import then I don't see how they're going to fight this one. From my understanding the undeniable fact is any Madagascar ebony coming out of that country is going to be illegally sourced and from what Ive read so far Gibson are going to have a tough job denying that they knew this.

[Kim]

No dispute that Gibson will have a tough time Martin. I simply maintain the first point I had made in this facet of the ongoings...That is to say that the court submission at the link "IS" slanted and we should not allow ourselves to become overly influenced by what it is stating had happened simply because WE, and I would suggest THEY too, and including all parties in this debate right up to the US courts, are yet to hear 'all' the facts. So please don't anybody take the suggestions I have made for the sake of this discussion, iwhich I thought had been quite 'clearly' represented upon a "what if" basis, as conclusive evidence of my heart felt beliefs.

I maintain that regardless of all other evidence, Gibson look set to loose the wood simply because they certainly do appear to have knowingly "fudged" the description of the shipment on the import documents. Their own earlier request for clarification indicates that they knew exactly what code they should have placed upon the import documents had they truly believed that the shipment contained only '"finished wood products" but 'they' chose not to do that. Regardless of whether or not that decision was made to avoid duty or not it made the shipment an illegal import of restricted wood products and as I read Lacey, it does not discriminate about 'how' a shipment had been illegal. The fact that it 'is' restricted wood and the fact that it 'is' illegal (for whatever reason) is in itself enough to justify confiscation of the shipment under that legislation.

Regardless of all that I maintain the USFWS action in this latest incident has been lazy because it is so confident about the outcome of the Madagascar wood that they tried to make one shoe fit all. In my opinion that will fail as soon as it is put to the test, and it will be tested, and when it is, my guess is that the USFWS will have the egg on their face that they so richly deserve for having ignored the laws as they exist, and replacing them with their own version....It all looks very much like an ego thing to me.

Cheers

Kim

[Kim]

I too haven't read the document in detail but on the first page there is a quote from an email from Nix who describes himself as a "Gibson employee and wood specialist".

My mistake.....

Yes Marty, it is 'your' mistake but you now have me quoting your words and that is not a good look because now it looks like I had made your assumption when I had only pointed yours out to you.

But no dispute that Gibson will have a tough time. I simply maintain the first point I had made in this facet of the ongoings...That is to say that the court submission at the link "IS" slanted and we should not allow ourselves to become overly influenced by what it is stating had happened simply because WE, and I would suggest THEY too, and including all parties in this debate right up to the US courts, are yet to hear 'all' the facts. So please don't anybody take the suggestions I have made for the sake of this discussion, iwhich I thought had been quite 'clearly' represented upon a "what if" basis, as conclusive evidence of my heart felt beliefs.

I maintain that regardless of all other evidence, Gibson look set to loose the wood simply because they certainly do appear to have knowingly "fudged" the description of the shipment on the import documents. Their own earlier request for clarification indicates that they knew exactly what code they should have placed upon the import documents had they truly believed that the shipment contained only '"finished wood products" but 'they' chose not to do that. Regardless of whether or not that decision was made to avoid duty or not it made the shipment an illegal import of restricted wood products and as I read Lacey, it does not discriminate about 'how' a shipment had been illegal. The fact that it 'is' restricted wood and the fact that it 'is' illegal (for whatever reason) is in itself enough to justify confiscation of the shipment under that legislation.

Regardless of all that I maintain the USFWS action in this latest incident has been lazy because it is so confident about the outcome of the Madagascar wood that they tried to make one shoe fit all. In my opinion that will fail as soon as it is put to the test, and it will be tested, and when it is, my guess is that the USFWS will have the egg on their face that they so richly deserve for having ignored the laws as they exist, and replacing them with their own version....It all looks very much like an ego thing to me.

Cheers

Kim

[peter.coombe]

Well summarising, and this is how I see it after reading both documents.

On the face of it F&W have a strong case against Gibson for the Madagascar Ebony, but we are yet to see Gibson's defence.
F&W do have a weak case against Gibson for the Indian Ebony. It is likely to collapse once the Indian Government gets involved. I am hoping F&W end up with serious egg on face and the whole episode triggors a change that makes the US system workable, because at the moment it is not. But maybe that is too much to hope for.

[kiwigeo]

Yes Marty, it is 'your' mistake but you now have me quoting your words and that is not a good look because now it looks like I had made your assumption when I had only pointed yours out to you.

?????

Think I'm missing something here. You quoted my words in order to correct my mistake....which I then admitted to. I don't see anything in any of our posts that makes you look silly. I'm into week three of a four week hitch at work so concentration isn't as good as it usually is.

[kiwigeo]

Well summarising, and this is how I see it after reading both documents.

On the face of it F&W have a strong case against Gibson for the Madagascar Ebony, but we are yet to see Gibson's defence.
F&W do have a weak case against Gibson for the Indian Ebony. It is likely to collapse once the Indian Government gets involved. I am hoping F&W end up with serious egg on face and the whole episode triggors a change that makes the US system workable, because at the moment it is not. But maybe that is too much to hope for.

That's pretty much the way I see things too. The Madagascar Ebony case doesn't help Gibson in any way.