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Old 28th July 2008, 02:39 PM   #2
Mark
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Default How CITES Works

The permit: 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. 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.

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 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.

Supporting documentation: 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 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.

CITES compliance – best practices: 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. Once 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.

The CITES process is painful, because it isn't always clear exactly what you need to do, but once you have everything in place, 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.
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