Published on May 15, 2014

Administrative Actions to Strengthen U.S. Trade Controls for Parts and Products of Protected Species

Frequently Asked Questions

Are there additional species that will be impacted by the administrative actions that will result in a nearly complete ban on commercial trade in African elephant ivory?
How do these actions impact species listed under CITES?
How do these actions impact ESA- listed species?
What is meant by the ESA antiques exception?
What is an endangered species antique port?
What are the requirements to import an antique made from an ESA-listed species?
What are the requirements to export an antique made from an ESA-listed species?
How does the U.S. importer document the identification of the species used in an ESA antique?
How does the U.S. importer document the age of an ESA antique?
How does the U.S. exporter or seller within the United States document that their article meets the ESA exception for antiques?
What will the Service accept as a qualified appraisal?
What are the penalties for violating the ESA?
Is it illegal to create or submit false paperwork to claim that an item qualifies as antique under the ESA antique exception?
What is a CITES exemption document?
What is the U.S. role in the illegal rhino horn trade?


Are there additional species that will be impacted by the administrative actions that will result in a nearly complete ban on commercial trade in African elephant ivory?

Yes. To date, much of our communication has been focused on the impacts that these actions will have on trade in African elephant ivory. The United States has a significant ivory market and there is a great deal of public interest from those either involved in or concerned by domestic trade in elephant ivory to understand each of these actions and the impacts they have on that trade. However, illegal wildlife trade is an issue that goes well beyond elephants, impacting a wide range of species from rhinos to sea turtles to Brazilian rosewood. The administrative actions will restrict commercial use of other species listed under the U.S. Endangered Species Act (ESA) as well as those listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). For a complete list of species listed under the ESA, please visit the U.S. Fish and Wildlife Service's Endangered Species program website. To determine if a species is listed under CITES, please refer to the CITES Species Database.

How do these actions impact species listed under CITES?

african-elephant-walking-down-path

Green turtle
Credit:  Jim Trodel CC BY-SA 2.0

When the revised U.S. CITES implementing regulations go into effect, sellers of previously imported specimens of Appendix-I species (or certain Appendix-II species) will be allowed to sell their specimens if they can show that they were lawfully imported prior to the listing of that species under CITES Appendix I with no restrictions on its use after import or under a CITES pre-Convention certificate or other exemption document. This applies to sale across state lines or within a state (subject to state law requirements) and to live plants and animals as well as any item containing a part or product of the Appendix-I species.

Appendix I covers species most at-risk due to international trade, and so is the most restrictive of the CITES listings, effectively banning commercial international trade. Specimens imported before the species was listed in Appendix I may be traded commercially, but those imported after the restrictive listing are limited to use for non-commercial purposes and cannot be offered for sale.

Some specimens of CITES Appendix-II species are also limited to non-commercial trade. If import is only allowed for personal or other non-commercial use, then use within the United States must also be non-commercial. The onus will be on the seller of the item to demonstrate satisfactorily that it was imported prior to the restrictive listing, or under a CITES exemption document.

How do these actions impact ESA- listed species?

With the issuance of Director’s Order 210, any person wishing to engage in import, export, or interstate sale of an ESA-listed species needs to show that the item meets all of the criteria for antiques. This enforcement of the antique criteria currently applies to items made from Asian elephant, rhinoceros, sea turtle and any other ESA-protected species. However, these strict requirements do not apply to African elephant ivory due to the ESA African elephant special rule.

The Service intends to develop a rule to revise the ESA African elephant special rule to minimize impacts on trade in African elephant parts and products other than ivory, and on non-commercial movement of musical instruments and certain other CITES pre-Convention specimens, that we do not believe are contributing to the poaching crisis or to illegal trade. This will also allow us to propose retaining important conservation-related provisions of the current special rule. We anticipate publication of a proposed rule during the summer of 2014.

What is meant by the ESA antiques exception?

The import, export and interstate sale (sale across state lines) of listed species or their parts is prohibited without an ESA permit except for items that qualify as “antique.”

To qualify as antique, the importer, exporter or seller must show that the item meets all of these criteria:
A.  It is 100 years or older;
B.  It is composed in whole or in part of an ESA-listed species;
C.  It has not been repaired or modified with any such species after December 27, 1973; and
D.  It is being or was imported through an endangered species “antique port.”
***Under Director’s Order 210, as a matter of enforcement discretion, items imported prior to September 22, 1982, and items created in the United States and never imported must comply with elements A, B, and C above, but not element D.

What is an endangered species antique port?

In establishing the antique exception under the ESA, Congress directed what was then the U.S. Customs Service to identify specific ports of entry where antiques made from endangered and threatened species can be imported. There are 13 of these locations: Boston, Massachusetts; New York, New York; Baltimore, Maryland; Philadelphia, Pennsylvania; Miami, Florida; San Juan, Puerto Rico; New Orleans, Louisiana; Houston, Texas; Los Angeles, California; San Francisco, California; Anchorage, Alaska; Honolulu, Hawaii; and Chicago, Illinois.

What are the requirements to import an antique made from an ESA-listed species?

  • ESA antiques may only be imported at a port designated for the import of ESA antiques.
  • The import of ESA antiques requires the filing of a Declaration for Import or Export of Wildlife (Form 3-177) with documentation demonstrating that the item meets the ESA exception.
  • For ESA antiques made from species that are also listed under CITES, the importer or the importer’s agent must file Form 3-177 and all required documentation directly with the Service.
  • For ESA antiques made from species that are not listed under CITES, the importer or the importer’s agent may file Form 3-177 and all accompanying documentation with the U.S. Customs and Border Protection (CBP) Port Director. CBP will forward all documentation to the Service for a legal determination prior to release. The importer or the importer’s agent may also file directly with the Service and provide the necessary clearance to CBP.
  • The commercial import of ESA antiques must meet all licensing and fee requirements for wildlife imports and exports.
  • The import of ESA antiques made from species that are also listed under CITES requires a pre-Convention certificate issued by the CITES Management Authority of the (re)exporting country as part of the declaration.
  • The import of ESA antiques does not require an ESA import permit.
  • The importer must provide documented evidence of species identification and age to demonstrate that the article qualifies as an ESA antique. This may include a qualified appraisal, documents that provide detailed provenance, and/or scientific testing.    Notarized statements or affidavits by the importer or a CITES pre-Convention certificate alone are not necessarily adequate proof that the article meets the ESA exception.

What are the requirements to export an antique made from an ESA-listed species?

  • ESA antiques may only be exported at a Service designated port or at a port authorized under a designated port exception permit.
  • The export of ESA antiques must meet all of the Service’s standard declaration, license, fee, notification, and clearance requirements for wildlife trade. CBP is not involved in the export of such antiques.
  • The export of ESA antiques does not require an ESA export permit.
  • The export of ESA antiques from species that are also listed under CITES requires a pre-Convention certificate issued by the U.S. CITES Management Authority as part of the export declaration package.
  • The exporter must prove that the antique article meets all of the criteria under the ESA antique exception.

How does the U.S. importer document the identification of the species used in an ESA antique?

african-elephant-walking-down-path

Rosewood and ebony guitar
Credit: Francesco Lodolo CC BY-NC-SA-2.0

The person claiming the benefit of the ESA antique exception must definitively prove the identity of the species of which the article is composed in whole or in part. Such proof can be in the form of bona fide DNA analysis, a qualified appraisal, or other documentation that definitively demonstrates the identification of the species through a detailed provenance of the article.

How does the U.S. importer document the age of an ESA antique?
The person claiming the benefit of the ESA exception must definitively prove that the article is not less than 100 years of age. Such proof can be in the form of bona fide testing using scientifically approved aging methods by a laboratory or facility accredited to conduct such tests, a qualified appraisal, or another method that documents the age by establishing the origin of the article. The provenance may be determined through a detailed history of the article, including but not limited to family photos, ethnographic fieldwork or other information that authenticates the article and assigns the work to a known period of time or, where possible, to a known artist.

How does the U.S. exporter or seller within the United States document that their article meets the ESA exception for antiques?
The burden of proof is on the exporter or seller to show that the article meets all of the criteria under the ESA antique exception. Notarized statements or affidavits by the exporter or seller, or a CITES pre-Convention certificate alone are not adequate proof that the article meets the ESA exception.

What will the Service accept as a qualified appraisal?
An appraisal submitted as documentary evidence of an article’s eligibility under the ESA antique exception must meet the following criteria:

  • The person executing the appraisal either has earned an appraisal designation from a recognized professional appraiser organization for demonstrated competency in appraising the type of property being appraised or can demonstrate verifiable education and experience in assessing the type of property being appraised.
  • The person executing the appraisal is not the importer, exporter, buyer, recipient or seller of the article; does not benefit from the results of the appraisal (other than for the cost of the appraisal); is not a party to any of the transactions associated with the article (including any person acting as an agent for the transaction); is not an employee of any business that is a party to the transaction; and is not related to the person claiming the exception.
  • Facts we will examine in determining the reliability of the appraisal:
    • A description of the article in sufficient detail for a person who is not generally familiar with the type of article to determine that the appraisal is about the article in question. 
    • The name and address of the qualified appraiser; or if the appraiser is a partner, an employee, or an independent contractor engaged by a person other than the person claiming the exception, the name and address of the partnership or the person who employs or engages the appraiser.
    • The qualifications of the appraiser who signs the appraisal, including the background, experience, education and any membership in professional appraiser associations.
    • The date on which the article was appraised.
    • The scientific method in detail used to determine the age or species.
    • Descriptive information on the article including but not limited to: the size of the article; the medium; the artist or culture; approximate date the article was created; and a professional quality image of the article.
    • A detailed history of the article including proof of authenticity.
    • The facts on which the appraisal was based including analyses of similar works by the artist on or around the creation date.

What are the penalties for violating the ESA?
The maximum penalty for violating the ESA is one year in prison and a $100,000 fine for an individual, $200,000 for an organization. Those who engage in illegal wildlife trade under the ESA may also face prosecution under the Lacey Act's anti-trafficking provisions (maximum penalty of 5 years in prison and fines of $250,000 for an individual or $500,000 for an organization).

Is it illegal to create or submit false paperwork to claim that an item qualifies as antique under the ESA antique exception?

african-elephant-walking-down-path

Red, pink and bamboo coral jewelry on display in a 
store front
Credit: Heather Cowper CC-BY 2.0

Yes. The Lacey Act makes it illegal to produce or submit any false record, account, label for, or false identification of wildlife being transported in interstate or international commerce (maximum penalty 5 years in prison and fines of $250,000 for an individual, $500,000 for an organization). Making false statements and using false documents violates 18 U.S.C. 1001 (maximum penalty of 5 years in prison and fines of $250,000 for an individual, $500,000 for an organization). 

What is a CITES exemption document?
CITES grants exemptions from normal permitting procedures for certain types of specimens, including artificially propagated plants, animals that have been bred in captivity, and specimens that were taken from the wild before the species was listed under CITES, if they meet specific conditions. Under our revised use-after-import provisions, Appendix-I specimens imported under a U.S.-issued certificate for personally owned wildlife, a CITES pre-Convention certificate, an export permit or a re-export certificate for wildlife from a CITES registered breeding operation, an export permit or re-export certificate for a plant from a CITES registered nursery, or, in certain cases, a certificate for artificially propagated plants, may be sold within the United States, provided they are not subject to other regulations or permit conditions that allowed the import only for non-commercial purposes.

What is the U.S. role in the illegal rhino horn trade?
Approximately 2,800 rhinos have been poached in South Africa since 2008, a more than 7,000 percent increase compared to the previous 17 years. Most illegal rhino horn trade is destined for Vietnam and other Asian countries, where demand is driven by both traditional and non-traditional uses. However, the United States continues to play a role as both a consumer country and, increasingly, as a transit country for previously imported horns. The latter trend has been well documented in the Service’s Operation Crash, an ongoing nationwide crackdown on illicit rhino horn trade in the United States that has already led to 15 arrests, nine convictions and the seizure of significant numbers of rhino horns.