To qualify for the ESA antiques exemption, an item must meet all of the following criteria [seller/importer/exporter must demonstrate]:
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 No. 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.
*U.S. Customs and Border Protection (CBP) designated 13 ports for the entry of antiques made of ESA-listed species on September 22, 1982 (19 C.F.R. 12.26). The following ports are authorized: 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.
Antiques that meet these criteria (ESA antiques) are exempt from ESA prohibitions and the provisions in the African elephant final 4(d) rule. ESA antiques may be sold in interstate and foreign commerce and may be imported or exported without the need for an ESA permit. However, CITES and other import/export requirements must still be met. In addition, the moratorium on import of African elephant ivory under the African Elephant Conservation Act remains in effect for antiques and other African elephant ivory (other than sport-hunted trophies).
Under the ESA, a person claiming the benefit of the antiques exemption has the burden of demonstrating that the item qualifies for the exemption. This is true for all ESA-listed species, including African and Asian elephants. We have provided guidance in Appendix 1 of Director’s Order 210 on ways to demonstrate that an item qualifies as an ESA antique.
We want to clarify that forensic testing is not necessarily required. Provenance and age may be determined through a detailed history of the item, including but not limited to, family photos, ethnographic fieldwork, art history publications, or other information that authenticates the article and assigns the work to a known period of time or, where possible, to a known artist or craftsman. A qualified appraisal or another method, including using information in catalogs, price lists, and other similar materials that document the age by establishing the origin of the item, can also be used.