CITES and you, or "How not to lose your stuff"

[Mark]

I have for a long time promised to write a primer on CITES, and how it works & affects us as collectors. This is not what I consider a proper legal note on the issue, but I think it is more important to get the basic information to you sooner rather than later.

I have written this in two parts. The first is an overview of CITES, what it covers, what is exempted, and how it works. The second is a practical explanation of how to go about getting a permit (at least in the United States) under a CITES exemption. Be sure to read my lawyerly caveats at the end of the second post, which apply to both of these parts.

[Mark]

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international treaty the purpose of which is to preserve endangered species through control of their trade. There is a CITES web site (www.cites.org) that has a lot of information and links, including a list of member countries. The United States is a signatory, as are many other countries, so check the list to see if your country of origin and/or destination are there.

Under CITES, it is prohibited to sell, buy, transport, import, export, re-import, re-export or even possess any plant/animal (or part thereof) covered by the treaty. There are, however, circumstances under which one is excepted from the provisions of the treaty, and objects that are not subject to the treaty, which I will get to in a second. In terms of species covered, virtually any animal part that is used in or on an ethnographic edged weapon is covered. Specifically, ivory of any kind – African or Asian elephant, whale, walrus, manatee, etc. – is covered. Rhino horn is covered. Most “exotic” antler material is covered (i.e., basically anything other than white-tail, reindeer and North American elk antler). Virtually anything from any cat other than a house cat, and from any monkey or ape is covered. Many snakes, alligators, turtles & lizards are covered. As you can see, CITES by it terms prohibits doing almost anything with almost everything. True horn (like cow or carabao horn) and bone are the areas where there is some leeway, but the issue then becomes proving the horn/bone is not from a listed species. A full list of all covered species, by both common and scientific name, can be found in the CITES Appendices, linked here.

Some examples of prohibited transactions: I buy today a sword with an elephant ivory grip made in 1965, from someone in France. That right there is a prohibited transaction (both I and the seller are liable); it gets shipped from France to me in the U.S. -- a second prohibited transaction (again, both parties liable); I hang the sword up on my wall and keep it for a while -- a third violation (just me liable this time); I bring the sword up to Timonium for the annual EEWRS dinner, which involves transporting it across state lines -- a fourth prohibited act (just me liable, again); I then sell it to a fellow forumite in another state in the U.S. and mail it to him/her -- two more prohibited transactions (both myself and the buyer liable).

The treaty itself has no force as law in any country. Enforcement of its terms occurs through laws enacted by the signatory countries to implement the treaty. In the U.S. the most significant of these are the Endangered Species Act, the African Elephant Conservation Act, the Asian Elephant Conservation Act, and the Marine Mammal Protection Act. The links are just for reference – you will likely go blind and/or mad trying to read them. Between these three, all of the species listed in CITES are covered, as near as I can tell, and then some.

Each signatory country has a CITES managing authority, which in the U.S. is the U.S. Fish & Wildlife Service. The FWS has a CITES information page with useful information and links. The national CITES managing authority is the entity responsible for enforcing the implementing laws of a country, and for overseeing the CITES permitting process. The CITES web site has a link to a list of managing authorities for each member country (by the way, the map at this link shows that virtually every country in the world has signed on to the treaty).

There are several classes of items that are exempt from the CITES prohibitions, the most relevant in the “ethnographica”-collecting world being the exemption for items that are over 100 years old, and the exemption for items that were not, and have not been, “in commerce” as of December 28, 1973 (the effective date of the treaty. By "in commerce" it is meant that it has not been sold, or for sale, since that date (if the item has changed hands via sale even once after December 28, 1973, it loses the exemption).

This leads us to the practical portion of the discussion, and the next post.

[Mark]

Now that I have you scared, mad and/or depressed, here is the explanation of how it is possible to safely & happily co-exist as a collector with CITES.

In order to buy, sell, possess, transport, import, export, re-import or re-export protected material legally in or from a CITES signatory country, you must have the appropriate permit issued by the national CITES managing authority (which in the U.S., as I said in the previous post, is the U.S. Fish & Wildlife Service). The whole thing is mostly geared toward live animals, and animal parts like pelts, tusks, rhino horns, etc., but it does cover things made with them, such as grips and sheaths. The U.S. FWS has a web page with information and links on the import/export permitting process in the U.S. The full library of permits issued by the FWS is here.

If you want to take something out of the country and bring it back in, you need an "export/re-import" permit. To simply bring something in, or send it out, you need only an import or an export permit. To get a permit, you must establish that the article in question falls into at least one of certain exempted classes. The ones most applicable in the ethnographica collecting world are the exemption for items that are over 100 years old, and the exemption for items that were not, and have not been, “in commerce” as of December 28, 1973 (the effective date of the treaty. By "in commerce" it is meant that it has not been sold, or for sale, since that date (if the item has changed hands via sale even once after December 28, 1973, it loses the exemption).

Here is an interesting legal wrinkle that I have encountered during my own recent efforts to obtain an export permit. According to the U.S. law, and the regulations established by the FWS for carrying them out, an object that is more than 100 years old (as of at least the permit application date), is exempt from the restrictions imposed by the Endangered Species Act, i.e., not subject to the law at all. Thus, one should be able to get any sort of permit by merely establishing the age of the object. However, the FWS seems to be taking the view that everything is subject to the restrictions of the Endangered Species Act, but you can get a permit to undertake a restricted activity anyway by getting an exception to the rules from them (meaning, a permit). As a lawyer, its pretty clear to me that this is an improper reading of the law, but practically speaking they hold all of the cards unless and until you appeal their actions to a higher authority. The whole thing may seem like a subtle difference, but it is a significant one because it is the difference between starting in the position of simply not falling within the reach of the law, and of being per se restricted unless they give you their permission to proceed – it makes it easier for the FWS to deny a permit by exercising “discretion,” rather than having to justify why they should be allowed to apply this law to something to which it appears it should not apply. I intend to follow this up as far as I can, so I will keep you all informed of the outcome.

An application for a permit requires a supporting certification, with supporting documentation, that establishes that the object(s) in question fall within an exempted class. Documentation can be a sales receipt showing that YOU bought the item prior to the cut-off date (re-selling something bought prior to 1973 is still a no-no unless it is over 100 years old, because re-sale makes it "an article of commerce" again). It can also be an affidavit from an expert attesting to the antiquity or source of the material/item, with supporting documentation, or that the item is not in fact a part of a protected animal. I understand from the U.S. authorities that an affidavit from a museum opining on the antiquity of the object would be enough, so long as the basis for the opinion is reasonable and set out in the affidavit. I haven't asked any museum folk if they ever do this sort of thing or would be willing to. The relevant exception for the sword collector (in most cases), is that the piece is an antique (more than 100 years old), OR that it has not been in commerce since December 28, 1973. The certification alone does not put you in compliance – it is just the supporting evidence for a permit application, which if granted will put you in compliance. The certification can be made by anyone with expertise, and is usually in the form of a signed declaration that includes the certifier's credentials. I will post later a format that I received from the U.S. FWS. I have applied for an export permit for some of my swords, and supplied my own declaration, in part supported by an antique dealer’s appraisal.

Once the permit is obtained, you are well-advised once you have made specific arrangements for shipping to contact the Customs authorities and have them review and sign off on the permit, so that there is no delay in the export. The Customs Service (at least in the U.S.) has the power to inspect the item if they want, and this can save time in the end if they choose to because they have a separate authority under the U.S. laws to enforce import/export bans. In the U.S., the item must be exported from one of six specific ports, but there isn't a problem getting a waiver of that from the Customs office of the port you would otherwise have to use (BTW, the Customs office you need to deal with throughout this process is the one in charge of this port). What you should do, according to my contact at my regional port authority, is to bring or send the permit, along with the bill of lading (which is the shipping invoice), to the port authority office. This way they know what is being shipped, when, how, and from where. At this point they might want to check the package, but I am told in these cases usually don’t. One you have the Customs’ stamp of approval, there will be no more problems or interference in the shipment, as a copy of all of the approved documentation accompanies the shipment, showing that Customs has already inspected and/or approved the shipment.

Finally, you are also well-advised to contact the managing authority in the destination country so see if they require a separate permit application to receive the item into the country. Some seem to accept an export permit from a CITES country as sufficient basis to grant their own import permit without obstacle. Again, contact information for all signatory countries is on the CITES web site. So now you have all the right papers to export, and generally this is enough to get something into another country, since the basic requirements are uniform. The U.S. actually has stricter standards because we have the Endangered Species Act and a specific law about trade in African ivory, which have tighter standards than CITES.

Once in the destination country, you need to obtain another permit if you want to get the thing back out. Basically the same process in reverse, which I personally haven't gone through yet, but I am told that the original export permit is usually enough to get the new export permit from the other country. I would assume that it becomes all part of the same transaction if you contact the destination country about getting import permission – in other words you ask for an import/re-export permit.

It is a pain because it isn't always clear exactly what you need to do, but once you have figured it out, all you really need to do is wait for the wheels of government to turn. Approval can take up to 3 months in the U.S., and there is a considerable backlog right now, apparently.

Fine Print -- Please Read. I have to put the usual lawyer caveats in this, which apply equally to this and to the proceeding post: I offer this solely for information purposes and it should not be construed as legal advice in any form. Read the statute (it is found in Title 15, United States Code, sections 1531-1534), and the regulations (Title 50, Code of Federal Regulations, Chapters 14-21 more-or-less, mostly Chapter 17), or the corresponding laws and regulations in your country. Contact the CITES managing authority in your country (they are listed in the CITES website at http://www.cites.org), and/or get a legal opinion before proceeding with a transaction you think might violate CITES as enacted into law.

[Mark]

Leaving aside all legal issues, I must say that realistically it is simply too late to apply for an export permit (at least in the U.S.) for export of pieces to be included in the History of Steel exhibition. This was the case months ago, so I wasn't in an enormous rush to get this information out, other than wanting to let you know the situation. The bureaucratic process is simply too slow, even in the best of circumstances.

I filed back in August an application for a permit to export some of my swords for this exhibition. I finally received a response from the FWS at the end of November, requesting additional information. After a series of exchanges of about a week-and-a-half (in which that "legal wrinkle" I described in the last post became clear), I finally got medieval on them and wrote a lengthy e-mail with the legal argument as to why they are not justified in requiring this additional information (they wanted proof that the things had been previously imported legally). It has now been about three weeks and I have not heard anything, one way or the other.

As you can see, the process takes an enormous amount of time. Whether or not I get my application approved in time for the exhibition, I am hopeful that it will be a test-case for those who come after me, such that later permit applications for ethnographic weapons & other items will receive the correct review, and hopefully easy approval.

We all know that it is possible to send antique items containing materials such as ivory, between or within countries, so history tells us that it is very very unlikely that a routine shipment will be stopped and confiscated. Also, it is a legal fact that if something is 100 years old it is not subject to CITES. However, each country has its own procedural laws & regulations that might be violated if the right procedure isn't followed -- the issue is the failure to get the permit, not a violation of CITES. The only story I have heard of an actual confiscation occurred in Germany, and it resulted in the complete loss of the item (as far as I know). This seems unnecessarily harsh, at least in the U.S., as violation of the laws makes one subject to a fine in most cases (jail time for really bad guys like trafficers in baby gorillas and such), and I just can't imagine that there is justification for permenantly confiscating an item that is not subject to CITES, simply because you failed to go through some administrative procedure.

Just for information, I have also heard that under Korean law almost anything with an edge will be confiscated if found (nothing to do with CITES, but rather with a restriction on weapons). They are apparently quite active in doing this, and the airport authority at one point finally auctioned off several thousands of these confiscated items that they had accumulated. So be forewarned.

[Mark]

I was approved to export three of the five swords for which I requested the permit. The reason for denying a permit for the other two was, as I had described in the previous thread, is the FWS's position that in order to be granted a permit to "re-export" and item, you must establish that it was legally imported. Those two swords were ones that I bought from dealers overseas and had sent to me in the U.S., while the other three were bought by me within the U.S.

I am going to contest the denial (hey, I'm a lawyer - its what I do), because besides being beyond their authority under the statute, it is just plain ludicrous.

1) I applied for an export permit, not a "re-export" permit. The swords are mine, reside permenantly (at least for the known future) in the United States, and they are leaving the country temporarily for a non-commercial purpose. So I am not "re-exporting" anything by any reasonable definition of the term.

2) Not that I am going to point this out to the FWS, but the other three must have been imported into the U.S. at some point -- they are originally from Southeast Asia! Why is it that one only has to established that items that were brought into the U.S. by the applicant himself were legally imported? This is what we call an arbitrary application of the regulations, which is not permitted under the Administrative Procedure Act.

3) If their internal procedure were logically applied, in other words by requiring that the piece have been "legally" imported, period, without just requiring that the applicant prove it for those swords she/he imported themselves, there would be no way to "legally" do anything with one of these swords, ever.

4) This arbitrary application of their internal procedures just invites laundering of smuggled items. I mean, if you can get out of having to show legal importation just by telling them the thing was bought in the U.S., all one has to do is made a sale to some, then have them apply for the permit, and voila' it becomes legitimate what otherwise would have been "illegal" in their view. I think they are just too lazy or busy to bother to trace backwards through a chain of owners back to the first importation. Like I said, its all arbitrary.

5) They persist in saying that one needs an exception to the restrictions imposed by the Endangerd Species Act in order to be given a permit for an antique item. However, something extremely rare in U.S. statutes, the law very clearly states that antiques are not subject to the restrictions of the Act, which means that, well, they are not subject to them. They don't fall under the Endangered Species Act, and the Act does not (and cannot) provide any legal basis for imposing any restrictions on what you do with them. If they are beyond the reach of the law, it cannot be "illegal" to do anything with them that would have been prohibited if they were not antiques (and so, specifically, they were "illegally" imported, even if it was done without a permit). Failing to abide by an agency's regulations (or rather in this case their internal procedures because the regulations don't require what they want, either) is not a violation of any law. It might annoy them, and maybe they can sanction or fine you some way, but it's not illegal.

I just had to vent, but I though you would be interested in how an actual permit application was handled by the U.S. authorities. Plus, it gave me a chance to outline my appeal brief.

[Mark]

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