Michael McCullough - An Open Letter Regarding ESA Order 210

 
 
Michael McCullough LLC

155 WaterStreet.3d Floor. Brooklyn, NY 11201 .T: 646.262.7630. F:856.941.5720. Michael@McCulloughLlC.com

March 13,2014

To All Clients and lnterested Parties

Re: DIRECTOR'S ORDER NO. 2l0


Dear AIl:

By now, many of you have heard about the recent Order No.210 (the "Order) that sets policies and procedure for U.S. Fish and Wildllfe Service (the "Service") with regard to the
import, export and sale of elephant ivory and parts of other species listed under the Endangered Species Act of 1973 (the "ESA"). I have received many inquiries over the past two
weeks about why this is happening and what can be done about it.

Why was the Order issued?

The mass killing of elephants and rhinoceros over the past several years is a serious problem. White the killing of these animals has been a problem for decades, the increased rate
of killings has alarmed many people around the world. The plight of the elephant, in particular, should be of great concern to everybody, and the lack of focus this issue has received in the past has led to the very strict rules in the Order.

What does the Order do?

The Order reinterprets the ESA to impose the following new requirements on the commercial trade of ESA-listed endangered species:

. All African elephant ivory is prohibited from import into the U.S., regardless of the age of the object or the antique status of the ivory.

. All ESA-listed endangered species other than African elephant ivory (such as tortoiseshell, rhinoceros horn, whalebone, etc.) can be imported only if the object is
antique (over 100 years old).

African elephant ivory and all other ESA-listed endangered species can be sold in interstate commerce only if the object is antique (over 100 years old) and the owner has
documentary proof that the object was Iegally imported into the U.S. after 1982.

African elephant ivory and all other ESA-listed endangered species can be exported only if the object is antique (over 100 years old) and the owner has documentary proof
that the object was legally imported into the U.S. after 1982.

' For a short period of time and due to technical requirements of the law, items made from African elephant ivory can still be
sold in interstate commerce and exported even if they are not antique. Exporters should be wary of this exception because the export of African elephant ivory requires a CITES permit issued by the Service, and this exception is likely to be revoked before a CITES permit could be issued. Sellers in interstate commerce should obtain specific legal advice prior to sale.

2 See note l, above.

ln all instances listed above, the species identification of the wildlife material on the object and the antique status of the object must be certified in writing by a 3d party expert who has no interest in the sale of the object.

* ln all instances listed above, an object that otherwise qualifies as an antique will lose its antique status if the object was repaired or modified with new endangered species
material after December 27,1973.

How does the Order affect the art market?

The Order was meant to have a drastic impact upon the art market. ln the past, some importers have used the ESA's antique exception "to 'cover trafficking in newly poached ivory," so the Service has impose these new rules on all importers, exporters and sellers of ESA-listed endangered species.
 
Professional art dealers, collectors, auction houses and museums only import, export and trade in art objects that are certifiably antiques. These art market players have the
academic credentials and practical experience in the market to determine which objects are certifiably antique. But the Order does not allow certified antiques to be traded in interstate commerce unless the owner can prove that the object was legally imported into the U.S. after 1982.

Therefore, the following objects are excluded from the art market:
 
 
*All American-made antique objects containing ESA listed endangered species; .
* All antique object containing ESA-listed endangered species imported prior to 1982: 
*All antique objects containing ESA-listed endangered species imported after 1982 for which the owners no longer have copies of the import documents.
 
 ln consequence of the Order, most of the antique objects in private and museum collections that contain ESA listed endangered species have no market value.

What can be done to address this problem?

My firm is organizing a meeting on March 18,2014 from 6:30-8:30 in New York City for all interested collectors, dealers, auctioneers, and museums to discuss the Order, as well as discuss some solutions for maintaining a legal trade in art objects containing endangered species. Those interested in attending the meeting should contact me at Michael@ McCulloughLLG. com



Sincerely,
signed
Michael McCullough