CITES & ESA

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UPDATE: February 22, 2022

Earlier this month, Pearle Live Performance Europe and the International Federation of Musicians announced the launch of their joint website “Traveling with Musical Instruments in Compliance with CITES Rules.”

The site includes questions to help musicians and music ensembles prepare touring activities with musical instruments containing CITES-protected species. The objective is to help users determine whether a CITES Musical Instrument Certificate (MIC) is required when crossing international borders with their musical instruments for non-commercial purposes, such as concerts and other live performance events, competitions, teaching and recording. Musicians, orchestras and other music groups can also identify steps to be taken before their departure.

For more on the website, or to learn if travel is permitted with your instrument, visit traveling-with-instruments.eu

– per Music Inc.

UPDATE: August 28, 2019

Restrictions on the trade of rosewood were put in place in 2017, largely due to increased demand for rosewood furniture in China. The change in policy ended up costing instrument manufacturers, distributors, and retailers millions of dollars in delays and permits. It also discouraged traveling orchestras from performing internationally, for fear of having their instruments impounded at the border. As a result, many instrument manufacturers stopped using rosewood in their low and mid-priced instruments.

CITES has exempted instruments, parts and accessories containing rosewood from Appendix II of its treaty, allowing them to be transported globally without the need for a permit. The decision, effective November 26, was made in response to pressure from musical instrument makers and musicians, including C.F. Martin & Company and Taylor Guitars. The exception does not apply to Brazilian rosewood (Dalbergia nigra), which remains on CITES Appendix I.

Following the amendment, new and vintage finished musical instruments — which are defined as being playable now or after the installation of necessary parts — are exempt. Accessories that are finished, and separate from the instrument they are designed and shaped for, are also exempt.

The ruling applies to shipments of up to 10 KG (22.04623 lbs). Shipments are measured against the individual portions of the protected species contained within, as opposed to the cargo’s total weight.

While musical instruments are no longer subject to permits, trade in raw-material rosewood continues to be regulated by CITES, the Lacey Act and the Endangered Species Act.

Those who plan to travel internationally with a musical instrument that contains Brazilian rosewood, elephant ivory, tortoiseshell, or another protected species will need to obtain proper legal documentation, which can be found here.

CITES (sight – eees)

https://www.cites.org/
The following is basik 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 agreementy. 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 the 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 pickguards 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 botth.)

Abalone:

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

A CITES Identification Guide is available on the USFWS website.

Enforcement:

There are currrently 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:

Anchorage
Atlanta
Baltimore
Boston
Chicago
Dallas-Fort Worth
Honolulu
Los Angeles
Miami
Newark-New York
New Orleans
Portland
San Francisco
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.

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