7G | BIOLOGICAL MATERIALS—FISH, WILDLIFE, AND PLANTS

WILLIAM G. THOMPKINS, ELAINE I. JOHNSON, AND JULIE L. HAIFLEY (EDITED AND UPDATED BY JOHN E. SIMMONS)

CONSIDER THE following scenarios:

If any of these situations sound familiar, museum staff should know the applicable laws and permit requirements concerning fish, wildlife, and plants. The purpose of this chapter is to outline federal laws and regulations concerning fish, wildlife, and plants and to assist registrars, collections managers, curators, and scientists in determining if, when, and how to apply for federal permits that allow an institution to engage in activities that are regulated under these laws. This is a general guide and is not intended to be definitive; the specific laws and regulations should be reviewed prior to undertaking regulated transactions. In addition, biological material laws and regulations are periodically amended, so museum staff should refer to the most current text of relevant laws and regulations as well as consult with the appropriate regulatory agency to ensure compliance with rules.

This chapter only addresses federal laws, including the Endangered Species Act (ESA), which implements the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). It is important to comply with all state and local laws as well. Check with state and local authorities to determine if there are any applicable laws.

BACKGROUND

Trade in endangered, threatened, and other protected wildlife and plants has been destructive to the world’s flora and fauna. In an effort to curtail activity harmful to the populations of certain species, the United States and other nations have entered into international treaties and have passed domestic legislation designed to preserve and conserve species and their habitats. These laws limit and often prohibit specific activities involving protected species. Under certain conditions, exceptions to prohibited activities are allowed by regulation or permits for purposes such as scientific research, public display, enhancement of species propagation, or survival of the affected species.

Federal regulations concerning possession, disposition, and transportation of animals and plants are complex, and compliance can be daunting. Current regulations broadly govern commercial activities involving a relatively small number of the world’s species. However, such regulations significantly affect the museum community. Permits may be required when:

It is important that museum staff be aware of the various laws when museum activities involve protected species. Museum staff who have authority to collect, acquire, dispose, loan, or transport wildlife or plant specimens1 or objects containing wildlife or plant parts or products are responsible for determining whether the particular species is protected and for ensuring that the museum’s activities are in compliance with any applicable laws and regulations. Lack of compliance, whether unintentional or deliberate, may result in delays, seizure, and confiscation of materials, personal liability for civil and criminal penalties including fines or imprisonment, and damage to personal, professional, and institutional reputations.

Collections management policies should establish an institution’s standard of responsibility regarding compliance with all applicable laws and regulations (see CHAPTER 2, “Collection Management Policies”). The policy should establish authority and assign responsibility to approve, document, and ensure compliance with all legal requirements for transactions involving protected species. The institution should clearly address the delegation and responsibility of collecting authority regarding field research. Internal procedures should provide guidance for staff conducting research and collection activities regarding the acquisition, importation, exportation, and transportation of wildlife and plants and the necessary accompanying documentation.

It is not uncommon for museum staff to fail to recognize that some objects in their collections contain plant or animal parts or products that are protected by various federal laws or international treaties. These laws and treaties prescribe that certain requirements be followed to acquire, take,2 possess, dispose, transport, import, or export specimens or objects containing plant and animal parts or products. To comply with these laws, many routine museum practices require permits or compliance with other regulatory requirements. Laws generally apply to live or dead specimens of the protected species, as well as objects made in whole or from parts of protected species. No matter how small the object or how little of a specimen consists of an organism’s parts, the laws may apply (e.g., blood, tissue, DNA samples). A valid permit is required before commencing any prohibited activity concerning a protected species. Prior to such transactions, it is advisable to review the laws and regulations relating to each activity.

Many species are protected under more than one law. Any transaction involving protected species must be in compliance with the requirements of all laws under which a particular species is protected. In some cases, it is possible to file a single permit application that fulfills the requirements of the multiple laws affecting the species. Contact the appropriate regulatory agency for guidance.

Laws governing biological materials are written broadly and authorize that specific regulations be promulgated. Federal statutes are cited as US Code volume number and section number (e.g., 18 U.S.C. § 42). Government agencies publish regulations that implement laws in the Code of Federal Regulations (CFR).3 The CFR is a codification of the general and permanent rules published in the Federal Register by the departments of the executive branch and agencies of the federal government. The code is divided into fifty titles that represent broad areas subject to federal regulation. The regulations are cited as title number, CFR, part or section number. Title 50—Fish and Wildlife—contains most federal regulations regarding wildlife and plants. For example, migratory birds are listed in 50 CFR Part 10, subpart B; endangered and threatened wildlife in 50 CFR Part 17, subparts C and D; and marine mammals in 50 CFR Part 18. Each volume of the CFR is revised at least once each calendar year. The code is kept up to date by the Federal Register, which is published daily. These two publications should be used together to determine the latest version of any given regulation. The latest versions of these publications may be found at https://www.govinfo.gov/help/cfr or http://www4.law.cornell.edu/uscode/.

The Department of the Interior’s US Fish and Wildlife Service (USFWS) has the primary responsibility for the enforcement of federal laws that protect most endangered species, including some marine mammals, migratory birds, fishes, and plants. The USFWS also carries out US enforcement obligations for certain international agreements affecting protected wildlife and plants. For the most current information on species under the jurisdiction of USFWS, go to http://www.fws.gov/. Other federal agencies have enforcement authority for certain laws and regulations discussed in this chapter, as described.

Helpful Hints for Obtaining Permits under Federal Wildlife Laws

  1. Before Beginning the Permit Process
    • Identify knowledgeable museum staff and permit procedures.
    • Establish authority and assign responsibility to approve, document, and ensure compliance with legal requirements for all transactions involving protected biological material.
    • Identify the species involved to the most accurate taxonomic classification reasonably practicable (be species specific and include the scientific name, common name, and country of origin); seek expert advice if necessary.
    • Determine which laws cover the species and the permit requirements under each applicable law.
    • Determine the provenance of the object or specimen (compile supporting documentation).
    • Determine the intended uses and purposes.
    • Know the type of transaction (e.g., purchase, gift, loan, exchange).
    • Know the location where the permitted activity is to occur.
    • Know the point of origin, destination, and all intermediary stops for any shipment of wildlife specimens.
    • When field research or collecting in a foreign country is involved, staff must be aware of and comply with applicable laws and permit requirements of the foreign country.
    • Foreign collecting, exportation, and importation permits should be obtained for research materials well in advance of a proposed research project.
    • Live materials may require additional permits through the Animal and Plant Health Inspection Service (APHIS), of the US Department of Agriculture.4
  2. The Permit Process
    • Begin the permit process as soon as possible to allow sufficient time for the processing of permit applications and to avoid the problem of unforeseen delays.
    • When filing a permit application, be as complete and detailed as possible.
    • To expedite the permit process, consider sending the complete permit application by express mail or certified mail for proof of delivery.
    • If an object qualifies for an exception, contact the federal or state agency for the required application and assistance.
    • Under some circumstances, import and export of museum collections may be facilitated by a customs broker. Brokers are often familiar with permit requirements and can ensure compliance with the necessary procedures and documentation. However, remember that the institution remains ultimately responsible.
    • Couriers and shippers must know the permit requirements of the shipment, and the institution should have a system for monitoring their compliance.
    • Maintain all records documenting importation, exportation, transportation, and subsequent disposition. Retain copies of all documents relating to permit applications. It may be helpful to have multiple copies of the application and required documentation during shipment and clearance.
    • Stay informed about new or modified regulations by checking the Federal Register and agency publications.
    • If questions arise as to whether a permit is required, or concerning the permit process or other related questions, contact the appropriate federal or state agency.
    • Build a cooperative relationship with the local USFWS special agent and regional office.
  3. Reporting
    • There are procedures for using the permit that may include reporting, recording, declaration, and other notification requirements. These requirements and instructions are often explained on the permit or attached to it. Pay close attention to these instructions and any attachments that accompany the permit.
    • It is the responsibility of the institution to make sure that timely annual reports or renewal applications are submitted.
    • Any person accepting and holding a federal permit consents to and allows the entry, at any reasonable hour, by agents or employees of the permitting agency on the premises where the permit activity is conducted. Federal agents or employees may enter such premises to inspect the location of any plants or wildlife kept under the authority of the permit and to inspect, audit, or copy any books, records, or permits required to be kept.

Summary of Federal Laws Promoting Conservation of Wildlife and Plants

  1. The Lacey Act

    18 U.S.C. § 42; 16 U.S.C. § 3371, et seq.; 50 CFR Part 14

    The Lacey Act is the oldest and most comprehensive wildlife law in the United States. First enacted in 1900, the Lacey Act has been amended several times and its application expanded greatly. The Lacey Act Amendments of 1981 extended the protection of the act to all species of fish and wildlife, whether they are considered endangered or threatened. The Lacey Act also applies to plants but only to species indigenous to the United States and its territories that have been listed on a CITES appendix or pursuant to any state law protecting species threatened with extinction. The act establishes a single, comprehensive basis for federal enforcement of state, for eign, Indian tribal, and federal wildlife laws. The Lacey Act provides the legal authority for detailed regulations that implement the statute (Lacey Act provisions requiring humane treatment of live animals and protection against injurious species are discussed separately below).

    The Lacey Act prohibits the importation, exportation, transportation, sale, receipt, acquisition, or purchase of any fish, wildlife, or plant that was obtained or transported in violation of any law, treaty, or regulation of the United States or Indian tribal law. Under the Lacey Act, it is illegal to import, export, or transport in interstate commerce any container or package containing any fish or wildlife, unless the container or package has previously been plainly marked, labeled, or tagged in accordance with regulations issued pursuant to the act. Making or submitting false records, labels, or identifications of fish, wildlife, or plants may violate the Lacey Act. The importer or exporter of rec ord may be held responsible for noncompliance by its agents, such as shippers, couriers, or brokers, if the importer or exporter has not provided adequate instructions or taken appropriate steps to ensure compliance by the agent.

    Regulations implementing Lacey Act requirements for importing, exporting, and transporting wildlife are found at 50 CFR Part 14. Major provisions of the regulation that relate to importing, exporting, and transporting collection material include:

    1. Designated Ports

      Except when otherwise provided by permit or specific regulation, all regulated wildlife shipments must enter and leave the country through specific US Customs designated ports. Special ports have been designated for certain shipments to or from Alaska, Puerto Rico, US Virgin Islands, and Guam. Special port exception permits may be issued for scientific purposes, to minimize deterioration or loss, or in the case of economic hardship.

    2. Declaration of Wildlife Imports and Exports

      At the time of importation or prior to exportation of regulated wildlife shipments, importers or exporters must file with the USFWS a completed Declaration for Importation or Exportation of Fish and Wildlife (Form 3-177). This is not a permit, but a declaration or reporting form that must be submitted to the USFWS Law Enforcement Office at the port of entry. In addition to submitting hardcopies, the USFWS has developed an online system for filing Form 3-177.5

    3. Exceptions

      • Dead, preserved, dried, or embedded scientific specimens imported or exported by accredited scientists or accredited scientific institutions for taxonomic or systematic research may enter or exit through any US Customs port or may be shipped through the international mail system. This exception does not apply to wildlife that requires a permit to be imported or exported (e.g., an endangered species), or to specimens taken by sport hunting.
      • Any object (other than scrimshaw)6 that is more than one hundred years old that is composed in whole or in part of any endangered or threatened species and has not been repaired or modified with any part of an endangered or threatened species after December 28, 1973, may be imported at any US Customs port designated for such purpose.
    4. Inspection and Clearance Requirements
      • Regulated wildlife shipments imported into the United States must be cleared by a USFWS agent before they can be released from customs. Regulated wildlife shipments to be exported from the United States must be cleared by USFWS before they are packed in a container or loaded onto a vehicle for export. To obtain clearance, the importer or exporter must make available to the USFWS agent all shipping documents; all permits, licenses, or other documents required under the laws and regulations of the United States or of any foreign country; the wildlife being imported or exported; and any documents and permits required by the country of export or reexport of the wildlife. USFWS and customs officers may detain and inspect any package containing regulated wildlife, including all accompanying documentation, upon importation or exportation.
      • A USFWS or customs officer may refuse clearance of imported or exported regulated wildlife upon reasonable grounds to suspect that a federal law or regulation has been violated; the correct identity or country of origin has not been established; any permit, license, or other documentation required for clearance is not available, is not currently valid, has been suspended or revoked, or is not authentic; the importer or exporter has filed an incorrect or incomplete declaration form; or the importer or exporter has not paid fees or penalties due.
    5. Marking Requirements

      All regulated wildlife imported, exported, or transported in interstate commerce must be marked on the outside of the container with the names and addresses of the consignor and the consignee. An accurate identification of the species and the number of specimens of each species in the container must accompany the shipment.

  2. The Endangered Species Act

    16 U.S.C. § 1531 et seq.; 50 CFR Part 17 http://www4.law.cornell.edu/uscode/16/ch.35.html

    The ESA of 1973 is the most comprehensive US law for the preservation and protection of species that have been determined to be in danger of extinction. The ESA was designed to prevent the extinction of native and foreign species of wild flora and fauna. The law also provides for protection of the critical habitats of protected species.

    The ESA defines an endangered species as any animal or plant that is in danger of extinction. A threatened species is defined as any animal or plant that is likely to become endangered within the foreseeable future. A procedure has been established under the ESA by which the USFWS determines whether a species should be listed as endangered or threatened. The determination is published in the Federal Register and the lists of endangered and threatened species are compiled annually in the CFR. The Endangered Species list is found in 50 CFR § 17.11. The Threatened Species list is found in 50 CFR § 17.12. For current information on a given species, contact the appropriate agency with jurisdiction over the protected wildlife or plant in question.

    1. Prohibitions Under the ESA

      The act prohibits a wide range of activities and transactions with respect to endangered species; by regulation these prohibitions have also been extended to threatened species. The prohibitions apply equally to live or dead animals or plants, their progeny, and parts or products derived from them. The act and implementing regulations prohibit:

      • Importation into or exportation from the United States of any endangered or threatened species.
      • Taking any endangered or threatened species within the United States or on the high seas.
      • Possessing, selling, or transporting any species taken in violation of the act or regulation.
      • Delivering, receiving, or transporting any endangered or threatened species in connection with interstate or foreign commercial activity (for loans and gifts, lawfully taken and held endangered and threatened species may be shipped interstate as a bona fide gift or loan if there is no barter, credit, or other form of compensation or intent to profit or gain from the transaction).
      • Selling or offering for sale endangered or threatened species in interstate commerce (sales of legally acquired endangered or threatened species that take place entirely in one state are not prohibited by the ESA but may be regulated under applicable state laws).
    2. Permits under the ESA

      Under certain conditions, scientific and educational activities may qualify for permits allowing activities that are otherwise prohibited. See http://www.fws.gov/permits/. Permits may be issued for prohibited activities for the following purposes:

      • Endangered species permits may be granted for scientific purposes or to enhance the propagation or survival of the affected species, and for incidental takings or economic hardship.
      • Threatened species permits may be granted for scientific purposes; the enhancement of propagation or survival of the affected species; zoological, horticultural, and botanical exhibition; educational purposes; or special purposes consistent with the act.
    3. Exemptions

      Certain situations may be exempt from the prohibitions of the act. In these exempt situations, a permit is not required. The burden of proof that the specimen or activity qualifies for an exemption lies with the person engaging in the relevant activity. All supporting and authenticating documentation must be maintained with the specimens, particularly when they are in transit.

      • Pre-Act Wildlife—The prohibitions applicable to ESA species do not apply in the use of wildlife, except for African elephant ivory, held in captivity or in a controlled environment on (a) December 28, 1973, or (b) the date of publication in the Federal Register for final listing of the species as endangered or threatened, whichever is later, provided that the wildlife has not been held in the course of a commercial activity. An affidavit and supporting documentary evidence of pre-act status is required.
      • Antiques—Objects or specimens more than one hundred years old, composed in whole or in part of any endangered or threatened species, that have not been repaired or modified since December 28, 1973, with any part of a listed species, are exempt from the ESA prohibitions. The import and export of such antiques is allowed only through a designated port and must be accompanied by authenticating documentation.
      • Alaskan Natives—Alaskan Natives may take or import endangered or threatened species if such taking is primarily for subsistence purposes and is not done in a wasteful manner. Non-edible by-products of lawfully taken species may be sold in interstate commerce when made into authentic native articles of handicrafts and clothing.
      • Seeds from Artificially Propagated Threatened Plants—No permits are required for interstate or foreign commerce, including import or export, of seeds from artificially propagated specimens of threatened plants. The seeds must be accompanied by a label stating that they are of cultivated origin.
      • Captive-Bred Wildlife—USFWS regulations provide exceptions that allow importing, exporting, taking, and interstate commercial transactions including delivery, receipt, and sale of certain living endangered and threatened species, provided the purpose is to enhance the propagation or survival of the species. The regulation covers only living animals that are not native to the United States. The regulations prescribe detailed requirements for registration of captive breeding programs and other conditions that apply to captive breeding of protected species.
    4. Enforcement

      Both the USFWS in the Department of the Interior and the National Marine Fisheries Service (NMFS) in the Department of Commerce enforce the ESA. By agreement between the USFWS and NMFS, the jurisdiction of NMFS has been specifically defined to include certain species, while jurisdiction is shared in regard to certain other species. USFWS is the primary agency that administers the ESA and has jurisdiction over most wildlife and plants. For the most current information on species under the jurisdiction of USFWS, go to http://www.fws.gov/. For information on species under the jurisdiction of NMFS, go to http://www.nmfs.noaa.gov/.

  3. The Convention on International Trade in Endangered Species of Wild Fauna and Flora

    16 U.S.C. § 1531 et seq.; 50 CFR Part 23; http://www.cites.org/

    CITES is an international wildlife treaty that regulates the import and export of animal and plant species that are endangered and threatened by trade.7 The USFWS oversees CITES implementation in the United States, which became a party to the treaty in June 1975. The convention, with more than 175 party nations, protects more than thirty-three thousand species of plants and animals by establishing import and export restrictions on wildlife or plants threatened by international trade. The United States implements CITES through the US ESA.

    The animals and plants protected by CITES are divided into three lists called appendices. Amendments to the lists of species in the CITES appendices are published in the Federal Register and listed on the CITES website. A species may be listed in any of the three appendices, depending on the degree of protection deemed necessary.

    • Appendix I includes species threatened with extinction that are or may be affected by trade.
    • Appendix II includes species that are not necessarily under present threat of extinction bur may become so unless strictly regulated.
    • Appendix III includes species for which a country party to CITES has internal regulations to prevent or restrict exploitation and needs the cooperation of other parties in control of trade.
    1. Prohibitions

      The US laws implementing CITES prohibit the import, export, or re-export of CITES listed species without the required permits and also forbid the possession of any specimen imported, exported, or re-exported into or from the United States in contravention of the convention. All living and dead specimens and all readily recognizable parts and derivatives are subject to the prohibitions. Note that there are some exceptions for plant parts and derivatives.

      Some species protected under CITES also are protected by other US laws under which permit requirements may be more stringent, such as the US ESA, African Elephant Conservation Act, Marine Mammal Protection Act, Migratory Bird Treaty Act, Eagle Protection Act, and the Lacey Act. Permit applicants must satisfy the requirements of all laws under which a particular species is protected.

    2. Permits under CITES

      Permits are required to import or export wild-life or plants listed in Appendix I, II, or III. There are different permit requirements for importing and exporting CITES protected species, depending on which CITES appendix the species is listed in. Re-export certificates are required for the export of specimens that were previously imported, including objects subsequently converted to manufactured goods or works of art. Permits are issued by the management authority of the countries that belong to CITES. Similar documentation is required from designated authorities of countries that are not members of CITES. Permit application procedures and issuance criteria are found in 50 CFR Part 23.

    3. Exceptions

      Although CITES provides exceptions relating to some wildlife or plants listed in CITES appendices, those species may be subject to regulation under other US laws. An exception provided under CITES does not necessarily allow activities that are prohibited under other US laws. CITES permits may not be required under the following circumstances:

      • Pre-Convention Specimens—Wildlife or plants held in captivity or a controlled environment prior to listing of the species in a CITES appendix do not require import or export permits. Pre-convention certificates are required to prove that a specimen qualifies for this exception.
      • Captive-Bred Certificate and Certificate for Artificially Propagated Plants—No CITES permit is required if the specimen is accompanied by a Captive-Bred Certificate or Certificate of Artificial Propagation from the country of origin, staring that the wildlife or plant was bred in captivity.
      • Scientific Exchange Program—Scientific institutions may register with the CITES Secretariat to facilitate importation and exportation of accessioned specimens as noncommercial loans, donations, or exchanges between CITES-registered institutions. (see CHAPTER 3B, “Acquisitions and Accessioning.”)
      • In-Transit Shipments—For shipments merely transiting through a country, no import or export permits issued by that country are required as long as the wildlife or plant remains in customs custody. However, this may vary from country to country; for example, specimens listed under the ESA generally may not transit the United States.

  4. Marine Mammal Protection Act

    16 U.S.C. § 1361 et seq.; 50 CFR Part 18, subchapter C; http://www.nmfs.noaa.gov/pr/laws/mmpa/

    The Marine Mammal Protection Act (MMPA), enacted in 1972, protects all marine mammals, dead or alive, and their parts and products, including, but not limited to, any raw, dressed, or dyed fur or skin. The protected species include whales, walruses, dolphins, seals, sea lions, sea otters, dugongs, manatees, and polar bears. The taking, possession, and transportation of northern fur seals for scientific research and public display is regulated separately under the Fur Seal Act.

    1. Prohibitions

      The act prohibits the unauthorized taking, possession, sale, purchase, importation, exportation, or transportation of marine mammals and their parts and by-products. The MMPA authorizes the establishment of moratoria and a quota system for determining how many individuals of a marine mammal species can be taken without harm to those species or population stocks.

    2. Permits Issued under MMPA

      Permits are granted for purposes of scientific research, public display, incidental taking, commercial fishing, and enhancing the survival or recovery of the species or stock. Permit application procedures and issuance criteria are found at 50 CFR § 518.31 and 50 CFR Parts 220–222.

    3. Exceptions

      • Pre-Act Specimens—The prohibitions of MMPA do not apply in the case of marine mammal specimens or articles consisting of, or composed in whole or in part, of any marine mammal taken on or before December 21, 1972. To establish pre-act status, it is necessary to file an affidavit with the agency responsible for the management of the species in question.
      • Alaskan Natives—Alaskan Natives may take marine mammals for subsistence purposes or for purposes of creating and selling authentic native handcrafts and clothing to be sold in interstate commerce.
      • Marine Mammal Parts—Collection of certain dead marine mammal parts by beach collecting may be authorized, provided specific conditions are met.
      • Salvaging Specimen Material—Regulations allow the utilization of specimen material salvaged from stranded marine mammals by authorized persons. Such salvaging must be only for the purposes of scientific research or the maintenance of a properly curated, professionally accredited, scientific collection and must be reported to the appropriate regional office of the NMFS.
    4. Enforcement

      By agreement, the MMPA is jointly administered by the USFWS and NMFS with jurisdiction specifically defined to include certain spe cies. USFWS issues CITES permits for marine mammals under the jurisdiction of NMFS.

  5. Migratory Bird Treaty Act

    16 U.S.C. § 703–712; 50 CFR Parts 13 and 21

    The Migratory Bird Treaty Act (MBTA), enacted in 1918, covers any migratory bird, any part, nest, egg, or product made from a migratory bird, part, nest, or egg. The act is administered by the USFWS. Protected bird species are listed at 50 CFR 10.13. See also http://www.fws.gov/migratorybirds/

    1. Prohibitions

      The act prohibits the taking, possession, import, export, transport, sale, purchase, barter, or offer for sale of any migratory birds, and the nests or eggs of such birds, except as authorized by valid permit.

    2. Permits under MBTA

      • Permits may be issued for banding and marking migratory birds.
      • Permits may be issued to import and export migratory birds.
      • A scientific collecting permit is required before any person may take, transport, or possess migratory birds, their parts, nests, or eggs for scientific research or educational purposes.
      • Permits may be issued for other purposes, such as taxidermy, waterfowl sale and disposal, falconry, raptor propagation, and degradation control.
    3. Exceptions
      • Possession or transportation of specimens acquired on or before the effective date of protection of the species under the act does not require a permit. Import, export, barter, purchase, or sale of pre-act specimens is prohibited without a permit.
      • The MBTA provides a general exception to permit requirements for public museums, public zoological parks, accredited institutions of the Association of Zoos and Aquariums (AZA), and public scientific or educational institutions to acquire by gift or purchase, possess, transport, and dispose of by gift or sale lawfully acquired migratory birds. The specimens must be acquired from or disposed of to a similar institution, federal or state game authorities, or the holder of a valid possession or disposal permit.
      • The MBTA regulations, except for banding and marking permits, do not apply to the bald eagle or golden eagle.
  6. Eagle Protection Act

    16 U.S.C. § 668; 50 CFR Part 22; http://www4.law.cornell.edu/uscode/16/668.html

    The Eagle Protection Act (EPA) protects bald eagles (Haliaeetus leucocephalus) and golden eagles (Aquila chrysaetos), alive or dead, their parts, nests, or eggs. It was first enacted in 1940 to protect bald eagles, and amended in 1962 to include golden eagles. It is administered by the USFWS.

    1. Prohibitions

      The act prohibits taking, buying, selling, trading, transporting, possessing, importing, or exporting eagles or their parts, nests, eggs, or products made from them.

    2. Permits under EPA

      Permits may be issued for taking, possession, and transportation of bald or golden eagles, their parts, nests, or eggs, for scientific, exhibition, and Indian religious purposes. No permits are allowed for import or export, sale, purchase, or barter of bald or golden eagles.

    3. Exceptions

      A permit is not required for possession or transportation of bald eagles lawfully acquired before June 8, 1940, or golden eagles lawfully acquired before October 24, 1962. Pre-act specimens, however, may not be imported, exported, purchased, sold, traded, or bartered or offered for purchase, sale, trade, or barter.

  7. African Elephant Conservation Act

    16 U.S.C. § 4201–245; https://www.fws.gov/international/wildlife-without-borders/multinational-species-conservation-acts-african-elephant.html

    In an effort to assist in the conservation and protection of African elephant populations, the United States passed the African Elephant Conservation Act (AECA) in 1988. This act works in conjunction with the CITES Ivory Control System to protect the African elephant and eliminate any trade in illegal ivory. Currently, the African elephant is listed in Appendix I of CITES and as such most import or export must be accompanied by valid CITES documents.

    1. Prohibitions

      The act prohibits:

      • The import of raw African elephant ivory from any country other than an ivory-producing country (any African country within which is located any part of the range of a population of African elephants).
      • The export from the United States of raw ivory from African elephants.
      • The import of raw or worked ivory from African elephants that was exported from an ivory producing country in violation of that country’s laws or the CITES Ivory Control System.
      • The import of worked ivory from any country unless that country has certified that such ivory was derived from a legal source.
      • The import of raw or worked ivory from a country in which a moratorium is in effect.
    2. Exceptions
      • Worked ivory may be imported for noncommercial purposes if the item was acquired prior to the date CITES applied to African elephants (February 4, 1977) and is accompanied by a valid pre-CITES certificate.
      • Articles more than one hundred years old may be imported or exported for noncommercial and commercial purposes under a pre-CITES certificate, provided they have not been repaired or modified with elephant ivory on or after February 4, 1977. Proof of antiquity must be provided.
  8. Wild Bird Conservation Act

    16 U.S.C. § 4901; 50 CFR Part 15; http://www4.law.cornell.edu/uscode/16/4901.html

    The Wild Bird Conservation Act (WBCA) was enacted in 1992 to limit or prohibit the importation of exotic birds to ensure that their populations are not harmed by trade. The act assists wild bird conservation and management in the countries of origin by ensuring that trade in species is biologically sustainable and is not detrimental to the species. The WBCA is administered by the USFWS.

    1. Prohibitions

      The act prohibits the importation of any exotic bird in violation of any prohibition, suspension, or quota on importation and the importation of any exotic bird listed in a CITES appendix that is not part of an approved list, if the bird was not bred at a qualified facility. The WBCA authorizes the establishment of moratoria or quotas for import of certain exotic birds.

    2. Permits under WBCA

      Permits to import protected species may be issued if the importation is not detrimental to the survival of the species, and is for scientific research, zoological breeding or display, or cooperative breeding programs designed to promote the conservation and maintenance of the species in the wild.

Summary of Laws Applicable to Injurious Species and Protection of Live Animals

The laws discussed above are generally intended to promote the conservation of wildlife and plant species. Activities of museums, and especially zoos and aquaria, may also be affected by laws designed to protect against potential damage caused by injurious species or to protect live animals. These laws can be quite complex and are discussed briefly here. Institutions that conduct activities with live animals or potentially injurious species should become familiar with these laws.

  1. Lacey Act

    18 U.S.C. § 42; 16 U.S.C. § 1378(d); 50 CFR Parts 14 and 16

    1. Injurious Wildlife

      The Lacey Act, other aspects of which were discussed previously, prohibits the importation, transportation, or acquisition, without a permit, of any wildlife (or their eggs) designated as injurious to the health and welfare of humans; to the interests of forestry, agriculture, or horticulture; or to the welfare and survival of wildlife resources of the United States. The species listed as injurious wildlife are found at 50 CFR Part 16, subpart B. Permits are available for importation of such injurious wildlife for zoological, educational, medical, or scientific purposes. The permit requirements do not apply to the importation or transportation of dead scientific specimens for museum or scientific collection purposes.

    2. Humane and Healthful Treatment of Live Animals

      The Lacey Act prohibits the transport of wild mammals or birds to the United States under inhumane or unhealthful conditions. Detailed rules for humane and healthful transport required under the Lacey Act are set forth at 50 CFR Part 14, Subpart J.

  2. Animal Welfare Act

    7 U.S.C. § 2131; 9 CFR Parts 1–4; http://www.nal.usda.gov/awic/legislat/awa.htm

    The Animal Welfare Act (AWA) was enacted in 1966 to regulate the use of warm-blooded animals for research or exhibition purposes or as pets, ensuring that they are provided with humane care and treatment. The AWA regulates aspects of transportation, purchase, sale, housing, care, handling, and treatment. Regulations provide for the licensing or registration of animal dealers, exhibitors, operators of animal auctions, research facilities, carriers, and intermediate handlers. APHIS of the Department of Agriculture is the agency responsible for administering the act.

  3. Public Health Service Act

    42 U.S.C. § 216, 264–272; 42 CFR Parts 71–72; 21 CFR Parts 1240 and 1250; http://www4.law.cornell.edu/uscode/42/ch6A.html

    The Public Health Service Act (PHSA) was enacted in 1944. One of the purposes of the act is to prevent the introduction, transmission, or spread of communicable diseases from foreign countries to the United States or between states. It authorizes the surgeon general to promulgate regulations necessary to carry out this purpose. Under this authority, restrictions on importation and movement of turtles, rodents, bats, psittacine birds, and nonhuman primates have been implemented. Permits may be issued to engage in regulated activities for exhibition, educational, or scientific purposes. The Center for Disease Control and Prevention (CDC) in Atlanta is responsible for implementing the act.

  4. APHIS Authorization Act and Animal Quarantine Regulations

    21 U.S.C. § 101–136; 9 CFR Parts 75, 82, 92, 93–94, 98, 130; http://www4.law.cornell.edu/uscode/21/ch4.html

    The APHIS Authorization Act provides authority to protect the US livestock, poultry, and agricultural industries against infectious or contagious diseases. The act regulates the importation and exportation of certain animals and animal products into the United States that are or have been affected with or exposed to any communicable disease. Permits may be issued to import or export covered species and may impose quarantine requirements and other protective measures. APHIS is responsible for implementing the act.

Endangered Species in an Art Museum?

At first glance, one might consider an art museum to be an unlikely place for US Fish and Wildlife problems to occur. With the possible exception of ivory, many materials requiring special consideration when importing or exporting works of art might be overlooked by even a conscientious museum staff member. For example, a silver dagger with a skin-covered handle, a tortoise shell hair ornament, or a hat adorned with colorful feathers could present potential problems if imported from a foreign country without proper documentation.

As in other protected species situations, the time to begin asking questions is at the beginning of any transaction involving importation, exportation, or acquisition because the export documents must originate with the foreign country of export, and sometimes it is necessary to alert the appropriate museum officials of the need to begin the application process. In the case of one exhibition coming to the Smithsonian’s National Museum of African Art from Europe, it was necessary to go through the exhibition catalog and identify potential problems based on materials listed by each entry. A list of problem objects was provided to the organizing institution, which initiated the paperwork while the exhibition was still on its premises. Many questions arose about the types of materials involved, requiring correspondence with lenders, curators, and CITES officials. When the time came to ship the exhibition to the United States, the requisite documents had been obtained and the importation proceeded smoothly.

The purchaser of a 1920s Erard piano in Paris was not so fortunate. A concert pianist, the new owner arranged for air shipment of the instrument to the United States, only to have it seized by US Customs agents upon its arrival because it did not meet the requirements for exemption under the AECA. Despite the owner’s protests, the ivory was eventually stripped from the keys, a sad event for all concerned.8

What other types of materials could be subject to CITES enforcement? For works of African art, the most common are skin and fur products, feathers, claws of mammals or raptors, primate parts (hands, feet, and tails), tortoise shell, and other types of shells. Coral, which is often used in Asian works of art such as inlaid boxes and writing instruments, is another potential problem, as is rhinoceros horn, which is used in Chinese drinking vessels as well as in ceremonial dagger handles made in Yemen. Certain types of hardwood, such as mahogany and rosewood, could also require CITES permits.

After identification of potential problem materials, the next step is to determine specific identification, including both the common name and the scientific name of the source of each material. This step can be straightforward or may require consulting with an expert or scientist. In one instance of a Kongo nkisi containing unidentified feathers, the assistance of a well-known British specialist was needed to determine that the feathers in question were from a domestic fowl and, therefore, not subject to CITES. In a similar situation, the crowned eagle feathers adorning a mask from Zaire were easily identified as Stephanoaetus coronatus by the foreign lending institution, which then applied for the required permit. If only the common name is known, one may consult the CITES appendices for the scientific name.

Perhaps the most critical information in deciding whether one needs an export or import permit or a pre-convention certificate is the date the object was made or collected. For many African works, the date of manufacture is unknown, although it may sometimes be assumed to date from the period of Western colonization. One solution to the dating issue is to request an examination of the lending institution’s accession records. If the object is recorded as being in the collections of a museum before 1973, then one can be assured that it is pre-convention. However, US Fish and Wildlife may still require an Expert’s Affidavit. To qualify as an expert, individuals must be older than twenty-one years of age, state their years of experience in the field, and swear before a witness that they have carefully examined the object in question. The witness may be another museum staff member; the affidavit does not have to be notarized. A description of each object, including an approximate date of manufacture, must accompany the affidavit (e.g., anthropomorphic face mask with wood, pigment, animal hide, and monkey hair [Colobus abyssinicus uralensis], Zaire, probably twentieth century, collected 1952–1956).

An exhibition date or a publication date may also be used to prove pre-convention eligibility. Authenticating documentation must accompany the shipment. A statement by the affiant, such as the following, must also be included:

To the best of my knowledge and belief, the aforementioned objects were created before 1973 and have not been repaired or modified with any part of an endangered species on or after December 28, 1973 (50 CFR 14.22). They are, therefore, pre-convention and are exempt under the Endangered Species Act of 1973 (15 U.S.C.: 1531–43).

Another type of exemption that may be useful for shipping purposes is the Exception to Designated Port. Such an exception may be made for a single shipment or for a series of shipments over a specified period of time. Unless there are special circumstances precluding their use, all wildlife shipments must enter and leave the United States through a designated US Customs port.9 Availability of direct flights, loan requirements of institutional lenders, the need for continuous supervision by museum professionals to prevent deterioration or loss, or undue economic hardship all may be grounds for an Exception to Designated Port. In the case of economic hardship, the applicant must provide a cost comparison for inland freight, customs clearance, bonding, trucking, associated fees, and so on between the designated port and the nondesignated port. An exception may also be granted for scientific purposes, although this factor would not be applicable for an art museum.

In addition to the federal ESA, some states have more restrictive laws. To determine whether a particular state has endangered species legislation, check with an appropriate state conservation or wildlife agency prior to the transaction.

One must anticipate CITES issues well in advance of international shipping to allow sufficient time for research and obtaining the necessary permits. The advice of experts, including CITES officials in both exporting and importing countries, can be invaluable in preparing complete documentation. Determining the date of manufacture is of primary importance. Finally, one should consider obtaining an Exception to Designated Port, if advantageous, and make sure all endangered species laws, both state and federal, have been reviewed for compliance. •

NOTES

1. The US Fish and Wildlife Service defines a specimen as “any animal, or part, product, including, but not limited to; tissue, egg, scale, skin, feather or fur.” Available at: https://ehs.umich.edu/wp-content/uploads/2016/12/FWS-Biological-Imports.pdf (accessed August 8, 2019).

2. The term take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.

3. Available at: https://www.govinfo.gov/help/cfr.

4. Available at: https://www.aphis.usda.gov/aphis/home/.

5. Available at: https://www.fws.gov/le/declaration-form-3-177.html.

6. Scrimshaw refers to worked bone, cartilage, ivory, teeth, or baleen.

7. It is important to note that the CITES appendices and the list of endangered and threatened species under the ESA do not include the same species. ESA listed species are those with threatened wild populations; CITES listed species are those threatened by trade.

8. New Yorker, Feb. 22, 1993.

9. Available at: https://www.fws.gov/le/designated-ports.html.

Thanks to Kim Saito, Suzanne B. McLaren, and Kristin L. Vehrs.