As we’ve already discovered in the FWS 50 CFR Part 14 definitions, one factor that defines commercial activity in fish or wildlife materials (but not necessarily in plant products) “…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.” Theoretically, a shipment of 9 loose mastodon ivory bridge pins not invoiced as a “set” could be challenged, but a 12-string guitar bridge with a dozen pins would be counted as only a single item!

There are special regulations and exemptions governing such things as some “personal and household effects” and packaging/crating materials, which won’t be presented here but which are accessible by doing searches through the included links. For instance, see 50 CFR part 23.13(d), part 23.15(d)(7) which explains the CITES requirements for traveling internationally with your personal or household effects that include CITES material. These say that import/export documents aren’t needed unless an item or shipment contains CITES Appendix I materials; a guitar containing CITES I materials like Brazilian rosewood, tortoiseshell, or ivory must be accompanied by a species-specific export permit, such as a preconvention certificate 3-200-32 – but this only applies to the U.S. and doesn’t necessarily protect the owner in other countries. For CITES II materials no permit is needed as long as all other personal exemption requirements are met (such as not involving any type of commercial activity).

Certain CITES listings can be annotated so that they are limited to certain parts or products. For example, many CITES II and III species are annotated to limit the scope of the listing. Materials such as Honduran (Bigleaf) mahogany (Swietenia macrophylla, CITES II) is annotated to cover only “logs, sawn wood, veneer sheets and plywood” and Spanish cedar (Cedrela oderata, CITES III) is annotated to cover only “logs, sawn wood and veneer sheets””, but when contained in manufactured or “finished” products (like a guitar) they remain unregulated, even though they still need to be declared with APHIS (or FWS, for animal products). Even so, some port of entry (POE) CBP Agriculture Specialists have insisted that CITES and/or APHIS phytosanitary permits be produced over and above what the laws call for, and quoting actual CITES regulations doesn’t do a thing to change their minds. In such a situation the choices are: 1) submit paperwork that’s not necessary in order to just get the shipment cleared; 2) try appealing to their superiors; 3) ship through another port where CBP agents aren’t overstepping their authority; 4) alert the US CITES Management Authority so that the field staff can be educated about the scope of a particular CITES listing.

On the other hand, although only a CITES II material, Honduran/Bigleaf mahogany (Swietenia macrophylla) does need a PDQ-505 declaration filed for border clearance. The CITES I-II-II Timber Species Manual says if “…the country of origin is: other than Brazil, the Neotropics, or Nicaragua…the articles are not regulated by CITES; EXIT this manual.” But Honduras is in the Neotropics: see footnote 19, which defines Neotropics as including the “Caribbean, Central America, Mexico, and South America” (Honduras is a Central American country), and the wood is thus regulated.

An excellent and recently updated piece by John Thomas regarding the impact of CITES on traveling musicians is in the online version of the Fall, 2008 Fretboard Journal.

If traveling with or shipping any item which is part of a commercial transaction (anything which involves making a gain or profit), APHIS and/or FWS declarations, licenses, species-specific permits, Import/Export Permits/Licenses, or certificates will be unavoidable, and only certain ports of entry may be used. Personal effects such as guitars need no permits or declarations, but only as long as they don’t contain listed species, and only as long as a border agent doesn’t suspect they might. Because the latter situation is increasingly likely, it would be prudent to have either with you or with the instrument an original purchase receipt which lists all species used and their country of origin. Personal and household items which are not part of a commercial transaction or which do not require a species-specific permit may be imported or exported through any port of entry (POE).

The federal legality of using some unpapered Lacey or CITES Appendix I materials (woods and ivories, but not tortoiseshell) varies depending on whether they stay within the U.S. or move across the international border. As long as these materials were not imported in violation of CITES or obtained illegally they can be freely bought, sold, and used domestically – since CITES applies only to international trade there are no CITES-related requirements for legally acquired CITES-listed species (like Brazilian rosewood) when the activity is solely domestic. However, it is important to note that some CITES-listed species are also domestically regulated by the ESA (for example, Hawksbill sea turtle).

Within the U.S. the burden of proof falls on enforcement agencies to prove an item is illegal – something not possible when a paper trail is lacking. But when the material or product is to be exported, evidence of legality shifts to the exporter – something equally impossible without a paper trail. Thus while remaining in the U.S. no federal permitting is required and the item cannot be declared illegal or contraband, even though questions might be raised about its legality (the above comments based on private emails between David Berkowitz and FWS Division of Management Authority Branch of Permits Chief, Tim Van Norman). “However, the importer/exporter does not bear the full burden of showing legality. For example, if a species is obtained in a country that allows export without documentation, but that species is protected in a third country, the government would have to show that it came from that third country, [while] the importer/exporter would not have to prove that it did not” (quoted from a private note sent by FWS Branch of Operations Chief Craig Hoover).

But…state laws may or may not allow interstate or intrastate transactions, so be sure to check the regulations where you live (or where you intend to ship or transport). State laws are allowed to be tougher than federal but they can not conflict or be more lenient.

Unfortunately, and unfairly, for those owning wildlife or plant materials or products which may be decades or even centuries old, unless a discreet “paper trail” of original invoices, old letters, and/or import/export documents can be produced establishing what’s known as “due diligence” on your part it will be difficult to legally move these materials (or items made from them) across U.S. borders without risking confiscation and destruction, and possibly incurring severe fines or penalties.

It has always been a common practice to scavenge or recycle valuable materials from damaged antiques, musical instruments, and furniture, as well as architectural salvage. Doing so now might get you into trouble if the materials came from species now listed by the ESA. Concerning ESA-listed species in antiques, 16 USC 1539(h) says:

(h) Certain antique articles; importation; port designation; application for return of articles (1) Sections 1533(d) and 1538(a) and (c) of this title do not apply to any article which - (A) is not less than 100 years of age; (B) is composed in whole or in part of any endangered species or threatened species listed under section 1533 of this title; (C) has not been repaired or modified with any part of any such species on or after December 28, 1973; and (D) is entered at a port designated under paragraph (3). (2) Any person who wishes to import an article under the exception provided by this subsection shall submit to the customs officer concerned at the time of entry of the article such documentation as the Secretary of the Treasury, after consultation with the Secretary of the Interior, shall by regulation require as being necessary to establish that the article meets the requirements set forth in paragraph (1)(A), (B), and (C). (3) The Secretary of the Treasury, after consultation with the Secretary of the Interior, shall designate one port within each customs region at which articles described in paragraph (1)(A), (B), and (C) must be entered into the customs territory of the United States.

Here are the ESA-listed species which luthiers need to be aware of, which can not be reworked (or “repurposed”) into another form, or repaired using the same protected material:

Killer Whale (Orcinus orca) and Sperm Whale (Physeter catodon = macrocephalus) ivory teeth and inner ears (otoliths), or jaw bone. Prehistoric whale ivory and bone are also illegal to repurpose. Verifiably antique scrimshaw can be sold commercially across state lines; unregistered items or material can only be sold intrastate as long as not prohibited by state law.

Pacific Walrus (Odobenus rosmarus) ivory tusks and teeth. Raw walrus ivory acquired after December 21, 1972, can be owned but is illegal to buy or sell (unless both parties are Eskimo). Post-law ivory carved or scrimshawed by an Eskimo is legal to buy, possess, and sell. Prehistoric or “fossil” walrus ivory is exempt (as are mammoth and mastodon ivories) and legal to fabricate and trade interstate (or internationally, with a permit – see below).

Green Sea Turtle (Chelonia mydas) and Hawksbill Sea Turtle (Eretmochelys imbricata) tortoiseshell for picks, pickguards, and trim; Loggerhead Sea Turtle (Caretta caretta) very thin tortoiseshell for veneer work.

Black Abalone (Haliotis cracherodii) and White Abalone (Haliotis sorenseni) for inlay and trim, although the White ab. has never been used in instrument work because the shell is too thin and corrugated to allow blanks to be made – it’s mentioned here because CBP and FWS have caused border clearance problems by mistakenly claiming that inlays of regular white M.O.P. oyster (Pinctada maxima) are actually White ab., even though the latter is not as white as the oyster material.

ESA also names “Species of Concern” which are being closely watched but as yet are not listed and remain legal to work with. Those that are of concern in luthiery are:

Green Abalone (Haliotis fulgens), Pink Abalone (Haliotis corrugata), and the Pinto Abalone (Haliotis kamtschatkana). The Pinto is actually too small and thin shelled to be used as inlay material, but as with the White ab. it could be confused with other types of shell and cause problems.

African Elephant (Loxodonta africana) ivory cannot be imported, bought, or sold across U.S. borders or internationally, but it is legal to own, buy, sell or ship within the United States with no permits or registration requirements. Asian Elephant (Elephas maximus) is listed as endangered in the U.S. and by CITES, so cannot be traded either internationally or interstate within the U.S.

Hippopotamus and warthog are Protected but not listed as Endangered, so these ivory tooth and tusk materials can be freely worked and traded across state lines without any documentation or permits. They can be exported from the U.S. using an FWS Permit (see below).

For materials and products made from antique or pre-Convention ESA-listed species, as soon as one of these items is substantially modified or used to make a new product, its exempt status instantly disappears. Unfortunately, even with legitimate documentation the age of the original item does not automatically carry over to the use of its material in another one. Instead, the new article assumes the date of its recent remanufacture, thus now making it post-ban and illegal to sell or to import or export. In fact, if an antique were to only be restored using either old or new patches of the same ESA-listed species, its legal age will be moved forward to the date of the new repair, with the same insane results.

This is the regulatory restriction which prevents guitar picks or pickguards being made from recycled antique tortoiseshell bracelets, combs, and boxes, no matter how old they might be.

The situation is entirely different for antique or pre-Convention Brazilian rosewood. BW is listed in CITES Appendix I; but since it isn’t listed by ESA, pre-Convention items and materials can be freely modified, reworked, repaired, and repurposed without losing their antique or pre-ban status.

For papered pre-ban listed woods or items that will be cut up or sold as is, or used to make something else, to preserve their future exportability an FWS Form 3-200-32 can be filed to get a Pre-Convention Certificate/species-specific permit on the original pieces. This certificate is then used when showing FWS that the original material was remanufactured into other “pre-ban” pieces or products. For Brazilian rosewood, the number of items involved can be entered on Lines 13(a) and (b) of the application form; or state the metric volume of the wood and then in an additional note estimate the number of guitar parts to be made from it. For all other woods enter the same type of information on Line 12, or for non-commercial (personal) items use Line 11. Once filed, this information will be readily available for comparison so with material being cut up don’t try to create more pieces than claimed, and don’t later try to export the original item intact!

When recycling old pre-ban non-ESA listed materials after getting a Pre-Convention Certificate, it might be wise to take as many clear and detailed photos as possible both before and during the salvaging process, and save most of your cut-off scraps so that if ever questioned about a particular item you’ll be able to exactly match its color and grain to your pictures and scraps of the pre-ban object, proving where it came from.

Remember, APHIS has nothing to do with any of this, and if the use is truly domestic (within the U.S.) then FWS also doesn’t care and no CITES documentation is needed.

There are exceptions for bona fide antiques, although these can also be technically required to have original paperwork, something usually impossible for items which have been around for a century or more! In some instances, acceptable certification can be gained using a written age estimate from a legitimate “recognized” authority.

Here are the regulations establishing the above restrictions in using or remanufacturing older ESA-listed plant or animal materials (bold italics supplied):

Title 19 CFR 10.53 – Antiques
(e) Antique articles otherwise prohibited entry by the Endangered Species Act of 1973 (16 U.S.C. 1521, et seq.) may be entered if: (1) The article is composed in whole or in part of any endangered or threatened species listed in 50 CFR 17.11 [animals] or 17.12 [plants], (2) The article is not less than 100 years of age, (3) The article has not been repaired or modified with any part of any such endangered or threatened species, on or after December 28, 1973, (4) The article is entered at a port designated in 12.26 of this chapter, (5) A Declaration for Importation or Exportation of Fish or Wildlife (USFWS Form 3177) is filed at the time of entry with the port director who will forward the form to the U.S. Fish and Wildlife Service, and (6) The importer meets the requirements of paragraph (a) of this section.

Title 50, CFR 14.22 Certain antique articles.
Any person may import at any Customs Service port designated for such purpose, any article (other than scrimshaw, defined in 16 U.S.C 1539(f)(1)(B) and 50 CFR 217.12 as any art form that involves the etching or engraving of designs upon, or the carving of figures, patterns, or designs from, any bone or tooth of any marine mammal of the order Cetacea) that is at least 100 years old, is composed in whole or in part of any endangered or threatened species listed under §17.11 or §17.12 of this subchapter, and has not been repaired or modified with any part of any endangered or threatened species on or after December 28, 1973.

FWS has species-specific permits available through their Law Enforcement Offices. Here are the CITES pre-Convention or ESA pre-Act Exemption Certificates or species-specific permits which are available from FWS:

For wildlife, complete FWS Form 3–200–23 and submit to the U.S. Management Authority. Cost is $100.00.

For plants, or for exporting Brazilian rosewood (Dalbergia nigra) which is verifiably vintage or antique (pre 6/11/1992) as either wood or guitars, submit FWS Form 3-200-32. The cost is $50.00-200.00 (depending on whether applying for a single shipment, personal property, or for setting up a “Master File”). Currently the approval process can take up to 6 months to finalize.

For fossil walrus ivory, native Eskimo carved, or raw walrus ivory predating Dec. 21, 1972, use FWS Form 3-200-27. The cost is $100.00, and it will take 30-45 days to get a response.

African elephant ivory removed from the wild after February 4, 1977, is not considered to be Pre-Convention; and worked African elephant ivory may only be re-exported for non-commercial purposes. To re-export such items, submit FWS Form 3-200-73. Cost is $75.00. Raw ivory tusks may not be re-exported. Mammoth and mastodon ivories can be freely traded without any permits

A recently published FWS Factsheet gives information on the following exceptions, along with charts for determining which species-specific permits, certificates, or forms will be needed for import, export, or re-export activities:

For a Pre-Convention (CITES) item, you must state that it was acquired (removed from the wild or held in captivity or a controlled environment) before the date CITES applied to it. The listing date can be found at the CITES website.

For a Pre-Act, ESA (Endangered Species Act) item, you must state that it was acquired or held in a controlled environment on or before (a) December 28, 1973 or the date when the species was listed, and (b) has not entered into commerce (e.g., been bought, sold, or offered for sale by you or anyone else) since December 28, 1973, or the date when listed.

For a Pre-Act, MMPA (Marine Mammal Protection Act) item, you must state that it was taken prior to December 21, 1972.

For an Antique, ESA (composed in whole or in part of any endangered or threatened species) item, you must state that it was manufactured or removed from the wild over 100 years ago, and has not been repaired or modified with any part of any such species on or after December 28, 1973.

What must ALWAYS be avoided is getting involved with wildlife material which comes from endangered (“listed”) plants and animals and lacks a paper trail. Genuine antiques might be O.K.; but materials or products of recent or undocumented origins, having falsified paperwork, or coming from unscrupulous dealers will eventually put both you and your customers at risk. It also defeats the original and legitimate purpose of these wildlife laws: to protect species which are dangerously close to extinction. Establish a high ethic for your activities and then stick with it, and above all make sure you “know your dealer”!

If you see a man approaching you with an obvious intent of doing you good, you should run for your life.
Henry David Thoreau

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