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CITES and ESA

CITES   (sight - eees)

The following is basic information and guidelines for musical instrument owners who are considering traveling across international boarders with their musical instruments. Enforcement of provisions of the CITES treaty and the Endangered Species Act vary from place to place and agency to agency. New species and materials are being added to CITES and the ESA; enforcement priorities change – it is a dynamic situation. Please do not assume that this is legal advice. The intention of this article is to familiarize musicians with some of the issues and help point to governing agencies for answers and more detail.

Definitions and Acronyms:

CITES:
Convention on International Trade in Endangered Species of Wild Fauna and Flora (International Treaty) - www.cites.org

ESA:
Endangered Species Act (Federal Law) - www.fws.gov/laws/lawsdigest/ESACT.html

USFWS:
United States Fish and Wildlife Service (Enforcement Agency) - www.fws.gov



CITES

The United Nations Convention on International Trade in Endangered Species of Wild Fauna and Flora is an international agreement. The treaty is the result of a resolution adopted in 1973 at a meeting of the World Conservation Union (IUCN). Its purpose is to help the survival of endangered plant and animal species by limiting or controlling their international trade. 33,000 species of plants and animal are currently affected.

CITES Participation is voluntary. Countries agreeing to be bound by the Convention are known as Parties. In concept, CITES is legally binding on the Parties, but does not replace national laws. The treaty provides an international legal framework, and requires each country to adopt domestic legislation for local enforcement. In practice, penalties and enforcement vary widely from country to country. An important aspect of the treaty is establishing Management and Scientific Authorities to determine what materials to seize and what to do with the confiscated products.

The final text of the Convention was determined at a meeting of representatives of 80 countries in Washington, D.C., United States, on March 3rd, 1973. It was then available for signatures through December 31st, 1974. On July 1st, 1975 it entered into force after the 10th ratification by a signatory country. As of June 17th, 2008, 173 Countries have become Parties to the Convention.

The treaty applies to controlled flora and fauna: export, re-export, import and introduction from the sea. There are 3 appendices establishing a hierarchy of protection for threatened species of plants and animals. They currently list approximately 28,000 plant species and 5,000 animal species. Fortunately very few are used in instrument building.

  • Appendix I: “Threatened with extinction, which may be affected by trade”.
  • Appendix II: Species “not necessarily now threatened with extinction” but “may become so unless trade in specimens of such species is subject to strict regulation”.
  • Appendix III: Species that are “subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation."


Appendix I includes:

  • Brazilian Rosewood (Dalbergia nigra) – application date: 11/6/92
  • Mammoth ivory and elephant ivory – application date: 6/1/47
  • Tortoise shell from the Hawksbill turtle (Eretmochelys imbricata) – application date: 7/1/75


Appendix II includes:

  • Big leaf mahogany (Swietenia macrophylla) – Honduran mahogany.
  • This only applies to export and import of raw wood, not completed instruments.


Appendix III includes:

  • South African abalone – Perlemoen – application date: 5/3/07
  • This is not used on American guitars but allows room for enforcement confusion. North American guitar makers use Mother of Pearl, pink, red or green abalone.


White abalone (Haliotis sorenseni) - is not CITES listed but is listed in the ESA.

Things to check for on your instrument:

Ivory:

  • Saddles, nuts, tuning buttons, bridge pins and binding. (Please remember that Martin guitars built before 1918 were often bound with ivory. Martin's ivory bridges also ended in 1918.)

Tortoiseshell:

  • Early pick guards and decorative tortoiseshell veneers.

Brazilian rosewood:

  • Tonewood back and sides, bridges, fretboards and headstock veneers. (Please consider that most all Martin guitars built before 1968 have some form of Brazilian rosewood on them: fretboards, bridges or both.)

Abalone:

  • White abalone in the rosette, bridge, headstock or fret markers.


A CITES Identification Guide is available on the USFWS website.

Enforcement:

There are currently 173 country signatories to CITES. Strictest enforcement can be found in the US, Canada, European Union, Australia and Japan. Each of these countries have domestic laws in addition to and stricter than the basic CITES framework.

To travel with an instrument with any of the controlled materials, you will need an export permit from the US and an import permit from the destination country. An export permit is granted 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 material “was not obtained in contravention of the laws of that State for the protection of fauna and flora.” For the import permit, you will need proof that you are not importing the materials “primarily for commercial purposes.”

There are 7 exemptions to these regulations. Most do not apply to musical instruments. One may apply: your instrument may be exempt if you can demonstrate that it was legally acquired before the materials were listed by CITES. This needs to be done in some form of written certification. In general, however, materials listed under Appendix I could be picked up anyway by zealous agents.

In the United States, CITES is enforced by the Fish and Wildlife Service in tandem with the Endangered Species Act (ESA). The ESA also covers Brazilian rosewood, ivory and certain abalone. Penalties for knowingly violating ESA or CITES include fines up to $50,000 fine and/or up to 1 year imprisonment. “Knowing” is to be interpreted in the legal sense. Remember: ignorance of the law is not an excuse. This applies if you simply carry your instrument across the border with no prior knowledge of CITES or ESA.

USFWS border agents have an identification guide / manual. The first photo on their Timber Import / Export Requirements fact sheet is a shot of the back of a Brazilian rosewood guitar. The same photo appears on the cover for Antiques fact sheets. They are trained to look for suspicious materials and to confiscate the instruments.

Guidelines:

Bear in mind – the following are not legal interpretations and border agents have broad authority to seize and confiscate whatever they suspect to be covered by ESA or CITES. If you are going to travel outside the US with an instrument that has any of the listed materials, contact the USFWS for advice and direction. That being said, the following guidelines might be helpful.

In order to be exempt from US CITES regulation, an instrument needs documentation (to the satisfaction of the USFWS) establishing that it predates the application dates of the controlled materials listed above. Check with the country of destination for any additional regulations or documentation that they may require.

In theory, if your instrument has ivory on it and was built before 1947 (and you can document it), you may be OK. The critical dates are determined by the manufacture of the materials. Using an extreme example: if the replacement nut was fashioned from fossilized mammoth ivory (more than 10,000 years old) but was formed into a guitar nut in January of 1993 – the nut will be considered as being built in 1993 and therefore a controlled material. You are not certifying the age of the mammoth ivory – you must certify that it was manufactured prior to the application date of that material for CITES.

The government has reserved the right to seize instruments that they suspect do not comply with CITES or ESA. Once seized, you have to prove that the government is wrong. This can be difficult or impossible: especially without the instrument. There is also no procedure for a retroactive permit. If the government confiscates your instrument on reasonable grounds and without the proper paperwork, you are considered to have violated CITES and have no rights for documentation after-the-fact.

In addition, there are only 14 ports of entry to the US authorized to handle CITES imports and exports. If you are traveling to or from the US with an instrument with controlled materials, be sure to exit and return through one of these ports of entry:

  1. Anchorage
  2. Atlanta
  3. Baltimore
  4. Boston
  5. Chicago
  6. Dallas-Fort Worth
  7. Honolulu
  8. Los Angeles
  9. Miami
  10. Newark-New York
  11. New Orleans
  12. Portland
  13. San Francisco
  14. Seattle


There are examples of instruments that have been seized and confiscated. Some US dealers have responded by stopping shipping instruments out of the country. Until the treaties and domestic laws have been updated to maintain their original honorable purpose and still allow for the transport of musical instruments without fear of seizure, our best advice is: leave the vintage guitar at home and find and alternative instrument over there.



Endangered Species Act (ESA)

White abalone (Haliotis sorenseni) is listed in the ESA and section 9 makes illegal any importation, exportation or removal from the sea. In effect, it might as well be listed in CITES as the enforcement is the same. The problem here is that white abalone looks something like mother of pearl, making enforcement more difficult and confusing.

The Endangered Species Act of 1973 was designed to protect endangered species from extinction as a "consequence of economic growth and development untendered by adequate concern and conservation."

The Endangered Species Act of 1973 was signed into law on December 28th, 1973. The stated purpose was to protect existing plants, invertebrates and vertebrates and "the ecosystems upon which they depend."

The ESA is administered by the United States Fish and Wildlife Service (USFWS) and the National Oceanic and Atmospheric Administration (NOAA) (which includes the National Marine Fisheries Service NMFS). NOAA handles marine species, and the USFWS has responsibility over freshwater fish and all other species. Species that occur in both habitats (e.g. sea turtles and Atlantic sturgeon) are jointly managed.

The ESA only protects species that are officially listed as "endangered" or "threatened". A species can be listed in two ways. The first is for the USFWS or NOAA Fisheries to take the initiative and directly list the species. The second is via individual or organizational petition that prompts USFWS or NMFS to conduct a scientific review. There are two categories on the list, endangered and threatened. Endangered species are closer to extinction than threatened species. There is a third status of: "candidate species" where the USFWS has concluded that listing is warranted but temporarily precluded due to other priorities.



United States Fish and Wildlife Service (USFWS)

Formed             June 30th, 1940
Headquarters     Ballston, VA
Employees        7,960 (2006)
Website            www.fws.gov

The United States Fish and Wildlife Service is a unit of the United States Department of the Interior that is dedicated to managing and preserving wildlife.

Units in the Fish and Wildlife Service include:

  • National Wildlife Refuge System
  • Bird Habitat Conservation
  • Federal Duck Stamp
  • National Fish Hatchery System
  • Endangered Species program

The Fish and Wildlife Service (FWS) is a bureau within the Department of Interior. The FWS's mission is, working with others, to conserve, protect and enhance fish, wildlife, plants and their habitats for the continuing benefit of the American people.


Significant Website Resources -

Permits, Paperwork, Instructions, Etc.:

US Fish & Wildlife Service – Management & Scientific Authorities – International Affairs Homepage

Timber – CITES listing from the US Fish & Wildlife Service

Buyer Beware Brochure from the World Wildlife Foundation

CITES pdf

CITES Timber Brochure pdf

CITES Permits and Certificates pdf

CITES Appendix 1, ll & lll pdf


APHIS Plant Declaration Forms pdf

U.S. Fish and Wildlife Service Forms page:

Declaration for Importation or Exportation of Fish or Wildlife – OMB Control No. 1018-0012

Continuation Sheet - Declaration for Importation or Exportation of Fish or Wildlife - OMB Control No. 1018-0012

Instructions for Declaration for Importation or Exportation of Fish or Wildlife

Privacy Statement for Declaration for Importation or Exportation of Fish or Wildlife

CITES Document Requirements Guidance for U.S. Importers and Exporters

© 2008, Leonard Wyeth


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