"The ESA requires that any person claiming the benefit of a statutory exemption has the burden of proving that the exemption is
applicable (16 U.S.C. 1539 (g)) so the burden of proof is on the importer, exporter, or seller to
definitively show that an item meets all of the criteria under the exception."
The word "definitely" in the above quote spells trouble for all of us. That will largely be open to the officer's interpretation when a situation comes up.
Also, unless I'm reading wrong, this ends the transfer of ownership, even as a gift, across state lines if the item was sold for any type of financial gain since 1976. Which I guess we already knew that except for part about "importing" and "exporting" (which could mean even giving as a gift an heirloom to a relative in another state) if the item was sold for proffit since 1976. Maybe I misunderstood, but it looks to be how it reads to me.
And since when is the definition of 'antique' 100 years old or more. I was under the impression that 'antique' was 50 years. 'Antique' for cars, at least here in Michigan, is 26 years. So now they can just change the definitions of words to fit their agenda too?
Yeah, this can't miss.
It goes on to define what "definitely" means lower down
"How does the U.S. importer document the identification of the species used in an ESA antique?
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 antique article was previously
imported and met all of the criteria under the ESA exception. See Section 2 above for the
requirements to import an article made from an ESA listed species and the type of
documentation that was required upon import. 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 appraisa
l 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 demonstrates 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."
