CITES, Lacey, & US border problems for instruments/materials
Posted: Wed Aug 31, 2011 7:32 pm
A FEW NOTES ON TRAVELING INTERNATIONALLY WITH OR SHIPPING A MUSICAL INSTRUMENT
If traveling out of the U.S. with an instrument containing mother-of-pearl inlays and Brazilian rosewood, what needs to be done to stay out of trouble? That’s a deceptively simple question that has an unfortunately complicated answer!
To start with, whether traveling with or shipping any items (such as raw materials, parts, musical instruments, or antiques) which contain animal species listed in CITES Appendix I, II, or III (http://www.cites.org/eng/app/index.shtml), not just any U.S. border port can be used. The ONLY ports of entry (POE’s, at http://www.fws.gov/le/ImpExp/Designated_Ports.htm) 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 (http://edocket.access.gpo.gov/cfr_2002/ ... r14.33.htm) 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 at http://www.fws.gov/le/ImpExp/CommWildli ... Export.htm.
Non-commercial personal wildlife items or baggage and household effects which do not require permitting may be cleared at any port of entry (http://www.fws.gov/le/ImpExp/Other_Ports.htm). Somewhat different and more restrictive laws may apply to commercial activities.
An instrument 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 (http://www.fws.gov/forms/3-200-32.pdf) – 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).
Now let’s deal with the instrument question, but we’ll set up a few different situations:
1) If it didn't have the shell inlay (a wildlife material) or the Brazilian rosewood (or any other CITES listed woods) you could simply clear it through customs as a "personal effect". Even then, it would be wise to have with you a list of all the wood materials including the common and Latin (scientific) species names and their countries of origin. Never volunteer the list but only whip it out if you get challenged about any of the woods.
2) If it has the Brazilian rosewood but not the shell inlay, and if the instrument has a serial number that can be referenced against rough manufacturing dates which are pre-ban (June 11, 1992) or other qualifying documents (original receipts; professional age estimate), the rosewood would require an FWS Form 3-200-32 (http://www.fws.gov/forms/3-200-32.pdf) which can be filed to get a Pre-Convention Certificate/species-specific permit. The cost is $50.00-200.00 (depending on whether applying for a single shipment, personal property, or for setting up a “Master File” for multiple items). Currently the approval process can take 3-6 months. A recently published factsheet by the USFWS regarding musical instrument issues can be seen here: http://www.fws.gov/international/DMA_DS ... uments.pdf.
3) If it has the shell inlay but no Brazilian rosewood or other CITES listed wood, use USFWS Form 3-177 9http://www.fws.gov/le/ImpExp/faqs.htm. Box 6 of this form requires a unique 3 character (alphabetic, numeric, or alphanumeric) Entry Filer Code (http://ecfr.gpoaccess.gov/cgi/t/text/te ... .4&idno=19) as assigned by CBP to all licensed brokers or importers/exporters. This code is then always used as the first three characters of a special 11 digit number which must be computed according to an extremely complex formula for each shipment. CBP will assign this Entry Filer Code to professional brokers and large volume importers, but unfortunately for anyone else the “large volume” threshold is defined as at least 15 shipments per month with a minimum annual value of $1,000,000.00! The only exception for smaller entities is if they already own a special Automated Broker Interface (ABI) software program used in electronic (internet) filings, one not available directly from Customs but through independent vendors and at a cost of approximately $50,000.00. So, in order to be strictly legal and avoid possible confiscation and fines, a customs broker must be hired to complete the paperwork – including the mandatory $91.00 “Inspection Fee” this is going to cost about $200.00 each time the instrument leaves or reenters the country.
Additionally, when importing or exporting any wildlife materials (or products containing them) even in the tiniest amounts, it will be necessary to apply for an FWS permit (Form 3-200-3, at http://www.fws.gov/forms/3-200-3.pdf) or license in order to fill out the 3-177 form. This will cost $100.00/year, even if you only need to use it once.
4) If it has both the shell inlay and the Brazilian rosewood or other CITES listed wood, both the 3-200-32 and 3-177 forms will be necessary, as well as the 3-200-3 permit.
5) If it has even the tiniest bit of ivory such as a string nut or bridge saddle, you’ll need the 3-200-3 USFWS Import/Export Permit and also a USFWS permit as below:
African elephant ivory removed from the wild after February 4, 1977, is not considered to be Pre-Convention (CITES); and worked African elephant ivory may only be re-exported for non-commercial purposes. To re-export such items, submit USFWS Form 3-200-73 (http://www.fws.gov/forms/3-200-73.pdf). 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. Other listing dates can be found at the CITES website (http://www.cites.org/). The cost is $75.00. Raw ivory tusks may not be re-exported. Mammoth and mastodon ivories can be freely traded without any permits.
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. 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 (http://www.eia-global.org/lacey/P6.EIA.LaceyReport.pdf). Penalties are the same for both animal and plant violations.
For full details on all these laws and how to deal with them, go to this recently posted article at the Guild of American Luthiers (GAL) site: http://www.luth.org/cites.htm.
“Flying under the radar” may have worked for decades, but with intensified governmental focus on stringed instruments, doing things the old way involves risks that can easily result in both the loss of an instrument, a business, and maybe even personal bankruptcy. How lucky do you feel? Welcome to the world of Big Government – if you don’t take a liking to it, go complain to a politician and think hard about who you’ve been voting for.
If traveling out of the U.S. with an instrument containing mother-of-pearl inlays and Brazilian rosewood, what needs to be done to stay out of trouble? That’s a deceptively simple question that has an unfortunately complicated answer!
To start with, whether traveling with or shipping any items (such as raw materials, parts, musical instruments, or antiques) which contain animal species listed in CITES Appendix I, II, or III (http://www.cites.org/eng/app/index.shtml), not just any U.S. border port can be used. The ONLY ports of entry (POE’s, at http://www.fws.gov/le/ImpExp/Designated_Ports.htm) 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 (http://edocket.access.gpo.gov/cfr_2002/ ... r14.33.htm) 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 at http://www.fws.gov/le/ImpExp/CommWildli ... Export.htm.
Non-commercial personal wildlife items or baggage and household effects which do not require permitting may be cleared at any port of entry (http://www.fws.gov/le/ImpExp/Other_Ports.htm). Somewhat different and more restrictive laws may apply to commercial activities.
An instrument 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 (http://www.fws.gov/forms/3-200-32.pdf) – 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).
Now let’s deal with the instrument question, but we’ll set up a few different situations:
1) If it didn't have the shell inlay (a wildlife material) or the Brazilian rosewood (or any other CITES listed woods) you could simply clear it through customs as a "personal effect". Even then, it would be wise to have with you a list of all the wood materials including the common and Latin (scientific) species names and their countries of origin. Never volunteer the list but only whip it out if you get challenged about any of the woods.
2) If it has the Brazilian rosewood but not the shell inlay, and if the instrument has a serial number that can be referenced against rough manufacturing dates which are pre-ban (June 11, 1992) or other qualifying documents (original receipts; professional age estimate), the rosewood would require an FWS Form 3-200-32 (http://www.fws.gov/forms/3-200-32.pdf) which can be filed to get a Pre-Convention Certificate/species-specific permit. The cost is $50.00-200.00 (depending on whether applying for a single shipment, personal property, or for setting up a “Master File” for multiple items). Currently the approval process can take 3-6 months. A recently published factsheet by the USFWS regarding musical instrument issues can be seen here: http://www.fws.gov/international/DMA_DS ... uments.pdf.
3) If it has the shell inlay but no Brazilian rosewood or other CITES listed wood, use USFWS Form 3-177 9http://www.fws.gov/le/ImpExp/faqs.htm. Box 6 of this form requires a unique 3 character (alphabetic, numeric, or alphanumeric) Entry Filer Code (http://ecfr.gpoaccess.gov/cgi/t/text/te ... .4&idno=19) as assigned by CBP to all licensed brokers or importers/exporters. This code is then always used as the first three characters of a special 11 digit number which must be computed according to an extremely complex formula for each shipment. CBP will assign this Entry Filer Code to professional brokers and large volume importers, but unfortunately for anyone else the “large volume” threshold is defined as at least 15 shipments per month with a minimum annual value of $1,000,000.00! The only exception for smaller entities is if they already own a special Automated Broker Interface (ABI) software program used in electronic (internet) filings, one not available directly from Customs but through independent vendors and at a cost of approximately $50,000.00. So, in order to be strictly legal and avoid possible confiscation and fines, a customs broker must be hired to complete the paperwork – including the mandatory $91.00 “Inspection Fee” this is going to cost about $200.00 each time the instrument leaves or reenters the country.
Additionally, when importing or exporting any wildlife materials (or products containing them) even in the tiniest amounts, it will be necessary to apply for an FWS permit (Form 3-200-3, at http://www.fws.gov/forms/3-200-3.pdf) or license in order to fill out the 3-177 form. This will cost $100.00/year, even if you only need to use it once.
4) If it has both the shell inlay and the Brazilian rosewood or other CITES listed wood, both the 3-200-32 and 3-177 forms will be necessary, as well as the 3-200-3 permit.
5) If it has even the tiniest bit of ivory such as a string nut or bridge saddle, you’ll need the 3-200-3 USFWS Import/Export Permit and also a USFWS permit as below:
African elephant ivory removed from the wild after February 4, 1977, is not considered to be Pre-Convention (CITES); and worked African elephant ivory may only be re-exported for non-commercial purposes. To re-export such items, submit USFWS Form 3-200-73 (http://www.fws.gov/forms/3-200-73.pdf). 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. Other listing dates can be found at the CITES website (http://www.cites.org/). The cost is $75.00. Raw ivory tusks may not be re-exported. Mammoth and mastodon ivories can be freely traded without any permits.
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. 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 (http://www.eia-global.org/lacey/P6.EIA.LaceyReport.pdf). Penalties are the same for both animal and plant violations.
For full details on all these laws and how to deal with them, go to this recently posted article at the Guild of American Luthiers (GAL) site: http://www.luth.org/cites.htm.
“Flying under the radar” may have worked for decades, but with intensified governmental focus on stringed instruments, doing things the old way involves risks that can easily result in both the loss of an instrument, a business, and maybe even personal bankruptcy. How lucky do you feel? Welcome to the world of Big Government – if you don’t take a liking to it, go complain to a politician and think hard about who you’ve been voting for.