Intrastate, interstate, national and international movement or trade which involves natural plant and animal materials and products is heavily regulated by a number of governmental agencies at each of these governmental levels. Both domestically and globally tens of thousands of species have become impacted, threatened or endangered, some only very slightly but others to the point of extinction. Along with individual state fish and game laws the U.S. Endangered Species Act (ESA) and the Lacey Act (16 U.S.C. §§ 3371-3378) establish stiff restrictions in the U.S. at both interstate and national levels.

The ESA is solely concerned with animals and plants that live in fresh or salt water, and has nothing to do with animals or plants found on land (such as trees). The National Oceanic and Atmospheric Administration’s (NOAA) National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS or FWS) share responsibility for implementing the ESA, which currently lists approximately 1,965 species. Of these species, approximately 1,370 are found in part or entirely in the U.S. and its waters; the remainder are foreign species. Generally, USFWS manages ESA’s freshwater species (as well as non-ESA land species), while NMFS has jurisdiction over ESA’s 73 listed saltwater species.

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) regulates over 33,000 animal and plant species, and applies only at the national level among participating countries (although a country may have stricter domestic measures, such as the ESA). These various regulations are certainly not uniform or standardized, but any movement and/or change of ownership in wildlife or plant materials must comply with all.

To wax philosophical for just a moment: there’s an underlying assumption of “deep ecology” proponents who have been so influential in establishing these laws, that as long as markets exist even for legal antiques or pre-ban listed species it will keep demand alive generally and thus encourage contraband activity. Technically, fully documented pre-ban antiques can be certified and commercially traded – but in practice very few antiques are still accompanied by original documents, and professional appraisal and applying for certification can cost more than an item is worth. There have been numerous instances of illegal material being marketed as legal, such as elephant ivory stained to resemble fossil mastodon; but antiques being used as a cover for illegal trade is not the same thing as antiques themselves driving demand. As far as I know, there's never been a definitive study published which proves that antiques keep demand in general alive – which reduces this argument to nothing more than reasonable sounding but unsupported opinion. But since there's also no published evidence for otherwise well reasoned opposing viewpoints, it remains a war of opinion.

Unfortunately we find ourselves with legislation that's to some extent based on nothing more than speculation, wishful thinking, and emotion, pushed by the popular press, heavily funded, and efficiently lobbied by some very large international activist organizations. When speaking with enforcement agents it’s disconcerting how often the “answers” to serious questions are simply a “stock” recital of the deep ecology mantras. Opinions are not arguments, and because they lack support can't attempt to prove anything; an argument is a supported opinion, with a necessarily logical link between the premises and the conclusion. So in this, as in life, the question should always be “is it true?”, and not “how do I feel about it?”

This article will mainly examine issues relative to “commercial” transactions, one definition of which is found in the U.S. Code of Federal Regulations (CFR):

As applied to fish and wildlife import activities in 50 CFR Part 14.4: Commercial means related to the offering for sale or resale, purchase, trade, barter, or the actual or intended transfer in the pursuit of gain or profit, of any item of wildlife and includes the use of any wildlife article as an exhibit for the purpose of soliciting sales, without regard to quantity or weight. There is a presumption that eight or more similar unused items are for commercial use. The Service or the importer/exporter/owner may rebut this presumption based upon the particular facts and circumstances of each case.

CITES and ESA may have slightly varying definitions of what constitutes “commercial” activity; but any transfer of ownership through a sale and purchase, or involving an exchange of funds or property where a profit results, will most likely be considered a “commercial” transaction.

Musical instruments, other manufactured goods, and antiques or vintage collectibles containing any type of wildlife or plant material in even the tiniest amount are being increasingly and aggressively challenged by port agents at the U.S. border, causing delays in delivery, generating extra fees and paperwork, and sometimes resulting in confiscation and/or destruction of personal items or commercial shipments as well as devastating penalties, even for first-time offenders. There is no “innocent owner exception” for border crossings that, however unintentionally, violate declaration requirements. Most of the laws have been in place for years, but it’s only recently that the musical instrument industry has attracted increased attention from enforcement agencies.

Fines and penalties for non-compliance can be extremely severe ($100,000-500,000 and 1-5 years in jail) especially if it’s determined that violations were done “knowingly” and without exercising “due care” in researching applicable laws; punishment is reduced to forfeiture of goods and perhaps several hundred dollars in fines if it can be shown illegal activity was “unknowing” and that “due care” was reasonably attempted.

The only way to establish evidence of “due care” and protect yourself as a seller, buyer or user is by filing meticulously correct import/export paperwork and asking questions and requesting documentation from your suppliers – create a “paper trail” by keeping notes on who you spoke with and when, and save or print out associated emails and letters. It’s also very important to keep accurately detailed books and save original paperwork for at least six years (indefinitely on any items still in your possession no matter how long ago they were acquired). Lacey Act provisions and a flow chart of penalties and fines for non-compliance on plant products are summed up in an Environmental Investigation Agency document, The U.S. Lacey Act. Penalties are the same for both animal and plant violations.

The latest enforcement phase of the U.S.’s Lacey Act came into effect on April 1, 2010, and requires importers of certain wood products including musical instruments (HST Chapter 92), to declare at the time of importation the scientific name and country of harvest for any wood or other plant material in their products. This is done by using a USDA/APHIS PPQ FORM 505. A recently published factsheet by the USFWS regarding musical instrument issues can be seen here.

In addition, anyone exporting or traveling with an item made from natural materials must also comply with somewhat varying rules for each destination country. U.S. law also demands that an item entering the country must have been compliant with regulations in its country of origin. To avoid trouble, knowledge of U.S. law is only a starting point!

Before continuing any further, it’s important that the terms “wildlife” and “plants” be clearly understood as defined by the main enforcement agency, the United States Fish and Wildlife Service (USFWS or FWS), in CFR 50:

Subpart B—Definitions
Definition of Wildlife
Wildlife means any wild animal, whether alive or dead, including any wild mammal, bird, reptile, amphibian, fish, mollusk (i.e. clam, snail, squid, octopus), crustacean (i.e. crab, lobster, crayfish), insect, sponges, corals, or other invertebrate, whether or not bred, hatched, or born in captivity, and including any part, product (including manufactured products and processed food products), egg, or offspring.

Definition of Plant: Plant means any member of the plant kingdom, including seeds, roots and other parts thereof.

These same regulations further explain that for both animals and plants the above definitions are meant to include:

…the dead body or parts thereof (excluding fossils), whether or not included in a manufactured product or in a processed food product.

The Lacey Act (which applies to interstate activities, but not intrastate) expands the above FWS definition of “plant” to include:

“…any wild member of the plant kingdom, including roots, seeds, trees from either natural or planted forest stands, and any products thereof. Expressly excluded from this definition are “common cultivars” (except trees) and “common food crops.”

Some animal materials used in guitars are exempt from being classified as wildlife if considered to be “domestic”:

CFR Title 50 §14.4:
Domesticated animals includes, but is not limited to, the following domesticated animals that are exempted from the requirements of this subchapter B (except for species obtained from wild populations): Camel (Camelus dromedarius and bactrianus); Cattle (Bos taurus); Sheep (Ovis aries); Water buffalo (Bubalus bubalus) [and others].

CITES (which applies at national and international levels) regulates species listed in one of three Appendices. Appendix I includes species threatened with extinction. Trade in specimens of these species is permitted only in exceptional circumstances. Appendix II includes species not necessarily threatened with extinction, but in which trade must be controlled in order to avoid activities incompatible with their survival. Appendix III contains species that are protected in at least one country, which has asked other CITES Parties for assistance in controlling the trade.

Whether traveling with or shipping any items (such as raw materials, parts, musical instruments, or antiques) which contain animal or plant species listed in CITES Appendices I, II, or III, not just any U.S. border port can be used. The ONLY ports of entry (POE’s) allowed to deal with wildlife shipments (of any sort, not just CITES related) that are commercial or require a species-specific permit are these 18: Anchorage, Atlanta, Baltimore, Boston, Chicago, Dallas-Fort Worth, Honolulu, Houston, Los Angeles, Louisville, Memphis, Miami, New Orleans, New York, Newark, Portland, San Francisco and Seattle. You may need to change travel plans in order to clear through one of these ports. If it can be shown that using an approved port would create a serious financial hardship, exception permits for using a non-approved port can be applied for (which can take substantial time to receive permission). A FWS Q&A on this subject can be found here.

Personal wildlife items or baggage and household effects which do not require permitting may be cleared at any port of entry.

Since May 1, 2010, when filling out import forms and documents APHIS has been requiring that exact quantities for each species of material in a shipment must be tallied and listed separately using only standardized metric units: kg, m, m2, m3. For a guitar, this means calculating exactly how much mahogany is in the neck and kerfing; how much ebony in the fingerboard, bridge, and heelcap; how much rosewood in back, sides, and peghead veneer; how much maple in the bindings; how much of each species of shell used in the inlays. The actual cost for each material must also be declared. Several luthiers have now figured out typical quantities for each model of guitar they make and use these saved files for completing their border clearance documents. Sure it’s a hassle, but it’ll help keep trouble from knocking on your door!

It’s important to understand right from the start that for clearing an export or import shipment involving any wildlife materials more than one federal agency will almost surely be involved: the Department of Homeland Security, U.S. Customs and Border Protection (CBP), the U.S. Census Bureau (Foreign Trade Division), the U.S. Fish & Wildlife Service (USFWS), the U.S. Department of Agriculture (USDA), and the Animal and Plant Health Inspection Service (APHIS). The Homeland Security Act of 2002 transferred most POE Ag inspection functions from APHIS to Customs and Border Protection

Many businesses have for years successfully imported and exported materials, instruments, and antiques using nothing more than Postal customs forms, innocently ignorant of the requirements for other forms, permits, licenses, or certificates. It remains entirely possible that shipments may continue to be cleared and released by Customs without full compliance on all the regulations and paperwork, but this creates several latent and potentially disastrous problems: if ever challenged or investigated, failing to provide a correct document trail will bring “due diligence” into serious legal doubt; instruments and inventories risk later confiscation; the importer/exporter risks severe penalties involving fines and/or jail time; and customers or recipients are also exposed to the same enforcement actions. “Flying under the radar” may have worked for decades, but with intensified governmental focus on guitar industry activities, doing things the old way involves risks that can easily result in both the loss of a business and personal bankruptcy.

The sea of regulations can be murky water even for U.S. Customs and FWS agents, and possibly even more so for brokers and lawyers. During an eight month long FWS investigation last year, I received plenty of wrong or sometimes incomplete information from all those sources, only getting knowledgeable answers (if then) when able to reach top officials, usually in Washington offices. A few of these admitted that many if not most of those working in enforcement at lower levels really don’t understand some of the fine or more obscure points of their own agency’s regulations and protocols. This misinformation can be blamed on a variety of reasons, including unfamiliarity with specialized and rarely referenced sections of the Code or quoting information that can be 10 or 15 years outdated (as much of the cached internet material is). It’s pretty frustrating, since you and I are held legally accountable for understanding and complying with very complex laws even though enforcement agents may not. Even the FWS lady investigating us acknowledged the problem several times. The best response when this happens is to be able to quote directly from specific regulations which the agent can then check for themselves – of course, this means having done your own homework earlier!

Other difficulties are that various agencies can sometimes have little or no communication with each other even though paperwork often needs to be coordinated between them; and that by law any government employee can not legally be held accountable or responsible in court for anything they may tell you, even if printed and signed on an agency’s letterhead! So be warned not to believe everything you’re told by lawyers, brokers, or government workers…do your own homework.

As the major supplier of all things nacreous, we can assure everyone that none of the shells we offer are threatened, endangered, protected, banned, or listed and they’re all openly brought in under our U.S. Fish & Wildlife Import/Export Permit’License. But simply because they’re “wildlife” (fish or animal) products FWS can cause unnecessary hassles, and be subject to various charges such as so-called “inspection fees” (even though any given package may never be opened or actually inspected!).

Our Duke of Pearl website has full information about each shell species we’re involved with including common and Latin (scientific) names, and their country of origin. Almost all shell used in inlay work is either commercially farmed or caught wild by licensed fisheries. On all forms or paperwork it helps to mention that the shell is caught wild, as per this suggested entry for Paua ab. as it might be used in a guitar:

Rosette and edge trim of wild caught New Zealand Paua abalone shell (Haliotis iris)

The Lacey Act requires (see here) that all shipments entering/exiting the U.S. or moving interstate which contain any fish or wildlife (not plant) materials or products be clearly so marked on the outside of the box or container:

§ 3372. Prohibited acts:
(b) Marking offenses

It is unlawful for any person to import, export, or transport in interstate commerce any container or package containing any fish or wildlife unless the container or package has previously been plainly marked, labeled, or tagged in accordance with the regulations issued pursuant to paragraph (2) of section 3376 (a) of this title.

(d) False labeling offenses
It is unlawful for any person to make or submit any false record, account, or label for, or any false identification of, any fish, wildlife, or plant which has been, or is intended to be—
    (1) imported, exported, transported, sold, purchased, or received from any foreign country; or
    (2) transported in interstate or foreign commerce.

To be in compliance with “paragraph (2) of section 3376 (a)”, how should this be done (see 50 CFR 14.81 and 82)?

For imports/exports: by either 1) writing on the outside of the box “CONTAINS WILDLIFE PRODUCTS” and attaching a list of the contents which includes both the common and Latin names of the species involved, whether they are venomous or not, their countries of origin, their Harmonized Tariff Code Classification Numbers, and your FWS Import/Export Permit/License Number, or, 2) writing on the box only your FWS Permit/License Number (“FWS LE XXXXXX-X”) and including a detailed list inside the shipment.

For interstate shipments: writing on the outside of the box “CONTAINS WILDLIFE PRODUCTS” (or a FWS Import/Export Permit/License Number, if you have one) and having either on or inside the box an itemized list with common and Latin names, stating whether or not they are venomous, and their country of origin (an FWS Import/Export Permit/License and tariff code are not required since you’re not importing or exporting).

Although I haven’t heard of these interstate shipping regulations being enforced anywhere yet, and it’s extremely doubtful that any carrier or agency is even paying attention, we’re now using a stamp for marking all packages with our FWS Import/Export Permit/License number as mentioned above to avoid FWS showing up at some point and citing us for non-compliance.

But if subsequently questioned at any stage of a transaction or movement, it will speed things up if you then supply a copy of a sales receipt from whoever sold you the shell or other materials (but don’t include this with the shipment’s original paperwork – as with the I.R.S., never volunteer more than the necessary minimum of information when dealing with any government agency).

If still having difficulty getting import or export clearance on materials purchased from a supplier, have the agent contact them and ask for a valid FWS Import/Export Permit/License number and any other information they might want (such as clarification on species information, or country of origin and/or manufacture).

AES Automated Export System
APHIS Animal and Plant Health Inspection Service
CBP U.S. Customs and Border Protection (also: USCBP)
CFR Code of Federal Regulations
CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora
DHS Department of Homeland Security
EEI Electronic Export Information
EEL Exemption and Exclusion Legend
ESA Endangered Species Act
FWS U.S. Fish & Wildlife Service (also: USFWS)
HTS Harmonized Tariff Schedule
ITN Internal Transaction Number
MMPA Marine Mammal Protection Act
NAFTA North American Free Trade Agreement
NMFS National Marine Fisheries Service
NOAA National Oceanic and Atmospheric Administration
PFC Proof of Filing Citation
P.O. Post Office (U.S. Postal System or USPS)
POE Port of entry
PPQ Plant Protection and Quarantine
SRN Shipment Reference Number
USC U.S. Code
USCBP U.S. Customs and Border Protection (also: CBP)
USDA U.S. Department of Agriculture
USFWS U.S. Fish & Wildlife Service (also: FWS)

When I use a word it means just what I choose it to mean, neither more nor less. Humpty Dumpty

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