Apparently Fish and Wildlife has met with some groups of collectors, dealers, and curators regarding their update to the regulations which is expected to be published in June. Michael McCullough has organized much of the efforts in working with FWS. This is the latest letter which was published in late March on his blog. This is the latest information we have. Its tedious but that's to be expected. Keep this for a reference. We will have more information later in the summer. JB
As They Please
Impending Regulations Will Destroy the Decorative Arts Trade
By Michael McCullough
A certain amount of information about the meeting of the Advisory Council on Wildlife Trafficking on March 20th has been passed on to me by members of the art trade who were in attendance.
It’s clear that the Council has no authority to make policy and is merely advising the Obama administration on policy options. However, it’s equally clear that the Council represents the will of a small group of wildlife organizations. Federal advisory bodies are usually dominated by interest groups that are able to place their members on the committee, which for these groups means that the government receives good information on the “true preferences” of private interests. Only in Washington can the interests of a narrowly focused group be considered an accurate reflection of the nation’s needs. The fact is that the Council contains no member with knowledge of the arts and antiques market, and, as a result, cannot offer any real advice to the White House on dealing with the issue of antiques. An example of this is the Council’s recommendation to the administration that it should start a public campaign to decrease public demand for goods made from endangered species: the Council’s discussion of the “demand” for ivory could articulate no sophisticated distinction between bona fide antiques containing ivory and tourist trade materials. In consequence of this, the “ivory problem” will remain a ripe target for a total ban on the sale of objects containing the material.
In a letter sent to Director Ashe of the U.S. Fish and Wildlife Service on March 7th, the Art and Antique Dealers League of America (“AADLA”) and the National Antique and Art Dealers Association of America (“NAADAA”) proposed the creation of an art advisory panel to assist the Fish and Wildlife Service in assessing whether objects being imported, exported or sold in interstate commerce are antiques. The implementation of an advisory panel would provide an effective solution to a problem viewed by the Council and the Administration as complex; it would encourage transparency, promote the lawful trade of ESA-permitted objects, and discourage the black market in unpermitted objects.
These two dealer groups were represented at the meeting last week by Clinton Howell, the President of the AADLA and a member of NAADAA. Mr. Howell provided the Council with strong critique of the administration’s recent actions, especially of Director Ashe’s “Order No. 210” that places severe restriction on the ability of dealers and auctioneers to sell antiques containing endangered species. Mr. Howell also distributed an excellent survey of the use of ivory in antiques, entitled “Ivory and Its Widespread Use in Cultural Artifacts,” done by the British Antique Dealers’ Association. Mr. Howell other materials included a report on the use of ivory in jewelry and a fact-sheet on the illegal ivory trade.
While the meeting contained a discussion about Senator Feinstein and Representative Garamendi of California developing legislation that could ban all ivory sales in the US, the immediate concern for the art and antiques trade remains the ominous restrictions in Order No. 210. Legislation could take months if not years to complete, but the Fish and Wildlife Service has already begun to impose new restrictions on the import and export of objects containing endangered species, and will likely begin enforcement of the new rules on the interstate trade within 60-90 days. These new regulations will destroy many small businesses long before a vote is taken in Congress.
McCullough offered the following compromise to FWS
The League and NAADAA Send Letter to the Director of the Fish and Wildlife Service
In a letter sent today to Director Ashe of the U.S. Fish and Wildlife Service, the Art and Antique Dealers League of America (the “League”) and the National Antique and Art Dealers Association of America (“NAADAA”) proposed the creation of an art advisory panel to assist the Fish and Wildlife Service in assessing whether objects being imported, exported or sold in interstate commerce are antiques over 100 years old.
The proposal states that “every importer, exporter and seller in interstate commerce would be required to apply to the Service for an ESA permit to conduct such activity with respect to each object containing ESA-listed species. The Advisory Panel would review the permit applications and advise the Service on the antique status of the objects. This would create a transparent market for ESA-permitted objects reviewed and certified by the Advisory Panel and registered with the Service.”
The art advisory panel is not a new idea. The Internal Revenue Service has maintained a similar advisory panel since 1968. The Art Advisory Panel of the Commissioner of IRS provides advice and makes recommendations to the Art Appraisal Services unit in the Office of Appeals. The IRS Art Advisory Panel helps the IRS review and evaluate the acceptability of tangible personal property appraisals taxpayers submit in support of the fair market value claimed on the wide range of works of art involved in income, estate, and gift tax returns. Some of the past and current members of the IRS Art Advisory Panel are past and current members of the League and NAADAA.
According to the letter, “[t]he implementation of the Advisory Panel along the lines proposed [above] would provide an effective solution to a complex problem; it would encourage transparency, promote the lawful trade of ESA permitted objects, and discourage the black market in unpermitted objects. In the absence of such transparency, the legitimate trade in antique ivory will suffer, and a secondary, secretive ivory market may continue to the detriment of the world’s elephant herds. We wish to help to avoid this counterproductive result.”
The League and NAADAA were advised by Michael McCullough LLC, a New York law firm that advises leading auction houses, dealers and collectors on endangered species issues in the art market. Mr. McCullough is an art market lawyer who is a former Associate Counsel to Sotheby’s. “This is a serious proposal by the dealer groups,” said Mr. McCullough. “It’s important to maintain a legal market for art objects that contain endangered species. By having a legal regulated market in antique objects certified by an advisory panel within the Fish and Wildlife Service, collectors and dealers will have a regulated market to trade in important art objects. Under the current Director’s Order, many of the objects in private collections and museums are worthless.”
After reading the letter, William Pearlstein of Golenbock Eiseman Assor Bell & Peskoe LLP, a prominent art market lawyer, said “the twin goals of the dealer’s proposal to create a transparent, licit market in ivory objects that are vetted and certified as antiques, and discouraging the traffic in uncertified objects that lack permits merits broad support.”
Mr. McCullough’s firm is organizing a meeting on March 18, 2014 from 6:30-8:30 in New York City for all interested collectors, dealers, auctioneers, museums and other interested parties to discuss the Director’s Order and the proposed solutions for maintaining a legal trade in objects containing endangered species. Those interested in attending the meeting should contact Mr. McCullough at Michael@McCulloughLLC.com
The latest information on the FWS is pretty much unchanged from FWS Directors Order 210 which put into effect immediately regulations that are almost impossible for any dealer in Asian, African American Indian, or Decorative Arts to meet. Specifically note the new definition of "antique ivory".
This has not been updated since just before Directors Order 210 in late February.
Given the unparalleled and escalating threats to both African elephants and rhinos, we believe that a nearly complete ban on commercial elephant ivory and rhino horn trade is the best way to ensure that U.S. domestic markets do not contribute to the decline of these species in the wild. To accomplish this, we will immediately pursue the following administrative actions:
- Prohibit Commercial Import of Elephant Ivory: We will eliminate broad administrative exceptions to the 1989 African Elephant Conservation Act (AECA) moratorium that have allowed commercial import of antique ivory.
- Clarify the Definition of “Antique”: We will incorporate the Endangered Species Act’s exemptions for commercial trade of 100-year-old antiques into regulations that re-affirm the criteria that must be met for an item to qualify as an antique.
- Strengthen Endangered Species Act Protection for African Elephants: We will revoke the regulations that allow African elephant ivory to be traded in ways that would otherwise be prohibited by the Endangered Species Act (ESA).
- Reinforce International Controls on Wildlife Trade Domestically: We will finalize a proposed rule that will re-affirm, clarify and improve public understanding of the “use- after-import” provisions in U.S. CITES regulations, so as to reduce sales, including intrastate sales (i.e. sale within a state), of wildlife that was imported for noncommercial purposes.
- Support Limited Sport-hunting of African Elephants: Limit the number of elephant sport-hunted trophies that an individual can import to two per hunter per year.
When will these actions take effect?
The actions described above will involve different processes and timelines. We are already working on these actions, and initial steps will be taken within the next several weeks. However, some of these actions will be open to public comment, so completion of some actions will take substantially more time.
Prohibit Commercial Import of Elephant Ivory: As a first step, we will issue a Director’s Order that will provide guidance to Service officers on enforcement of the existing 1989 African Elephant Conservation Act moratorium. The Order will lay out all of the actions to be undertaken by the Service to address the current crisis with elephants and rhinoceroses. We anticipate issuance of this Order by mid-February, 2014. We will also publish a proposed or interim final rule with an opportunity for public comment to revise the 1989 AECA moratorium as well as create regulations under the AECA in our general wildlife import/export regulations (50 CFR Part 14). We anticipate publishing a proposed or interim final rule by the end of June.
Clarify the Definition of “Antique”: This action, like the action above, will require a two-step process. In the same Director’s Order described above, we will provide guidance to Service officers on the antique exemption under the ESA. We anticipate issuance of this Order by mid-February. We will publish a proposed or interim final rule with an opportunity for public comment to revise our endangered species regulations (50 CFR Part 17) to provide guidance on the statutory exemption for antiques. We anticipate publishing a proposed or interim final rule by the end of June.
Strengthen Endangered Species Act Protection for African Elephants: We will propose to revoke the ESA African elephant special rule (50 CFR 17.40(e)). This action will require publication of a proposed or interim final rule with an opportunity for public comment, followed by a final rule. We anticipate publishing a proposed or interim final rule by the end of April, 2014.
Reinforce International Controls on Wildlife Trade: We will finalize revisions to our U.S. CITES regulations (50 CFR Part 23), including the “use-after-import” provisions in 50 CFR 23.55. These revisions have already been published as a proposed rule with a public comment period. We anticipate publishing a final rule by the end of February, 2014. The revised regulations will be in effect 30 days after publication in the Federal Register.
Support Limited Sport-hunting of African Elephants: We will publish a proposed or interim final rule with an opportunity for public comment to revise the 1989 AECA moratorium and create regulations under the AECA in our general wildlife import/export regulations (50 CFR Part 14). We anticipate publishing a proposed or interim final rule by the end of June, 2014.
Why is the U.S. Fish and Wildlife Service taking these actions?
Last July, President Obama issued an Executive Order committing the United States to step up its efforts to combat wildlife trafficking. The Executive Order created an interagency taskforce, co-chaired by the Department of the Interior, and appointed a Federal Advisory Council to galvanize efforts to work across the government and the conservation community to strengthen and expand our response to the wildlife trafficking and poaching crisis. As stated in the President’s Executive Order, wildlife trafficking reduces the economic, social and environmental benefits of wildlife, while generating billions of dollars in illicit revenues each year, contributing to the illegal economy, fueling instability and undermining security. It is in the national interest of the United States to combat wildlife trafficking and ensure that we are not contributing to the growing global demand for elephant ivory and rhino horn.
***Note: Regardless of your politics - this is another example where the current administration recognizing that they would not be able to pass this change to FWS regulations through Congress has, instead, sought to legislate through regulation.
Why not impose a complete ban on all import, export and domestic sale?
Under current laws, we are not able to impose a complete elephant ivory ban. With regard to both Asian and African elephants, the Endangered Species Act explicitly exempts antiques from ESA prohibitions and allows certain activities with the issuance of an ESA permit. Also, the African Elephant Conservation Act only applies to import and export and does not address Asian elephant ivory. In addition, there are certain activities that would be precluded by a complete ban that we believe would benefit the conservation of elephants or that do not contribute to poaching and illegal trade. Among these are the movement of ivory for law enforcement purposes and bona fide scientific purposes and the noncommercial movement of certain items, such as museum specimens and musical instruments containing pre-Act or antique ivory. Precluding such items would not benefit elephant conservation. However, we believe that the administrative actions available to us would result in a near complete ban and provide us with sufficient tools to ensure that the United States is not contributing to the poaching and illegal trade crisis.
Why do you allow the import of elephant sport-hunted trophies at all? What about other species?
The AECA, ESA and CITES allow the noncommercial import of sport-hunted trophies as long as certain conditions are met. We believe that well-regulated and managed sport hunting can contribute to conservation by putting much needed revenue back into protected area management, anti-poaching and other important conservation activities. We will propose to restrict elephant trophy imports to two elephants per hunter per year. In addition, we will continue to closely monitor sport-hunting of elephants and other species to ensure that it does not threaten wild populations; where necessary, we will increase restrictions or prohibit imports from at-risk populations altogether.
What activities involving elephant ivory will still be allowed?
Possession of lawfully imported and acquired elephant ivory items;Import and export of certain elephant ivory items that will not be sold;Interstate commerce (sale across state lines) and export of bona fide antiques; and Intrastate commerce (sale within a state) of bona fide antiques or ivory that the seller can demonstrate was lawfully imported prior to listing in CITES Appendix I (1990 for African elephant; 1975 for Asian elephant) or under a CITES pre-Convention certificate or other exemption document.
What other types of ivory are used, and how will they be affected by these actions?
These actions will not affect ivory derived from other species such as walrus, warthog, hippopotamus, mammoth and mastodon. Asian elephant ivory is already regulated under the ESA and CITES. Ivory derived from toothed whales is already regulated by the ESA, CITES and the Marine Mammal Protection Act. Strict application of the ESA definition of antique may limit some Asian elephant and whale ivory trade. See the section about antiques for more information.
What other elephant products will be affected?
If the ESA special rule for the African elephant (50 CFR 17.40(e)) is revoked as we propose, commercial import, export and interstate sale of all non-antique African elephant specimens will be prohibited without an ESA permit. In addition to ivory, this prohibition would apply to skins, leather products, hair and hair products. See section on the leather trade for more information.How are rhino horn, hawksbill sea turtle shell and specimens of other CITES Appendix-I species affected?
Our CITES regulations (50 CFR 23.55) place limits on how CITES Appendix-I and certain Appendix-II specimens may be used after import into the United States. The purpose is to prevent commercial use of specimens after import into the United States when only noncommercial trade is allowed under CITES. These provisions apply not only to elephant ivory, but also to rhino horn, hawksbill sea turtle shell and other specimens of Appendix-I species. We are in the process of finalizing a proposed rule updating our CITES regulations, including amendments to the “use-after-import” provisions. Use after import of Appendix-I specimens is limited to noncommercial purposes except when a person can demonstrate that the specimens were imported before the species was listed in Appendix I, or they were imported under a pre-Convention certificate or other CITES exemption document. We expect to publish the final rule by the end of February and will use this opportunity to improve public understanding of the “use-after-import” provisions. The revised regulations will be in effect 30 days after publication in the Federal Register. See the section on antiques for more information. Activities involving specimens of Appendix-I species that are listed under the ESA must also meet ESA requirements.
How is pre-Act (pre-ESA) defined under the ESA?Specimens (e.g. elephant ivory, hair or leather) defined as pre-Act may be exempt from standard prohibitions on import or export. To qualify as pre-Act, a specimen must:Have been held in captivity or in a controlled environment prior to December 28, 1973, or prior to the date of first listing under the ESA; andSuch holding or use and any subsequent holding or use was not in the course of a commercial activity.For what purposes can an ESA permit be issued and what is the process?For species listed as endangered, such as the Asian elephant, permits can be issued for scientific purposes, enhancement of propagation or survival, incidental taking or economic hardship. For species listed as threatened, permits can be issued for scientific purposes, enhancement of propagation or survival, economic hardship, zoological exhibition, educational purposes, incidental taking or other special purposes consistent with the purposes of the Act. For more information about permit application processes and requirements, visit our Permits page.
How is “antique” defined under the ESA?
Specimens (e.g., elephant ivory, hair or leather) defined as “antique” may be exempt from standard prohibitions on import, export and interstate sale. To qualify for the “antique” exemption, the importer, exporter or seller must prove that the specimen:
Collection of ivory figurines destroyed during Ivory Crush
Now what is "antique" ivory?
Credit: Kate Miyamoto/USFWS
1. Is 100 years or older;
2. Is composed in whole or in part of an ESA-listed species;
3. Has not been repaired or modified with any such species on or after December 28, 1973; and
4. Is being or was imported through an endangered species antique port.
Where can antiques made of ESA-listed species be imported?
These antiques can only be imported at the following ports: 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.
**Note: How can an owner who has acquired in the 1970's and owned an art object for over 40 years legally be expected to know retrospectively that their object had to have been imported through one of ten ports with the documentation to prove it. What constitutional property rights should prohibit the U.S. Government from literally destroying the value of the personal property of its citizens?
How will trade in antiques be impacted?
Eliminating the broad exceptions to the 1989 AECA moratorium will prohibit the commercial import of antiques made of African elephant ivory. Import of antiques will only be allowed for certain items not destined for sale, including household effects, musical instruments, museum specimens and other noncommercial items traveling on a CITES musical instrument certificate or traveling exhibition certificate.
Commercial and noncommercial import of antiques made out of other endangered species, such as Asian elephant or rhinoceros, will continue to be allowed provided the importer can prove the identification of the wildlife species at the time of import and the specimen meets the definition of an antique under the ESA.
Antiques made out of endangered species that are already here in the United States may continue to be sold in interstate commerce without an ESA permit provided the seller can prove that the specimen meets the definition of an antique under the ESA.
How will movement of sport-hunted trophies be affected?
These administrative actions will not significantly impact the import into the United States of African elephant sport-hunted trophies. The AECA specifically allows such imports. We will limit imports to two African elephant trophies per hunter per year. This limitation will affect very few importers.
Credit: Richard Ruggiero/USFWS
The special rule allows import of sport-hunted African elephant trophies from CITES Appendix-I populations without an ESA permit when certain conditions are met, including a Service determination that killing the animal will enhance survival of the species. Although these trophies will require ESA permits after removal of the special rule, the Service issues such permits based on the same information used for issuing the CITES import permit. We anticipate that the agency will be able to include the necessary ESA authorization on that document.
Therefore, we do not expect revocation of the special rule to impact import of sport-hunted trophies from CITES Appendix-I populations.
ESA permits will still not be required for import of sport-hunted trophies from Appendix-II African elephant populations when certain conditions are met. All imports of African elephant hunting trophies will still need to comply with relevant provisions in 50 CFR Parts 13 (general permitting) and 23 (CITES).
How will the carving and commercial use of raw and worked ivory in the United States be affected?
After the ESA special rule for the African elephant is revoked, commercial export and interstate commerce of all non-antique African elephant ivory will be prohibited without an ESA permit. The commercial import of non-antique African elephant ivory and raw ivory is already prohibited under the 1989 AECA moratorium. The ESA also already prohibits commercial import, export and sale in interstate commerce of Asian elephant ivory without an ESA permit.
With finalization of the use-after-import provisions in our CITES regulations, African and Asian elephant ivory can only be sold within a state (intrastate commerce) when the seller can prove that the specimen was imported prior to listing of the species in CITES Appendix I or Appendix II with an annotation restricting trade in some specimens to noncommercial purposes.
Under these actions, there are no changes in requirements with respect to use and sale of other ivories, such as mammoth, walrus, hippopotamus, sperm whale or warthog.
WALRUS: They have been regulated since 1972 under the Marine Mammal Protection Act and regulated by the U.S. Fish & Wildlife Service. The ivory that pre-dates the 12-21-1972 Law which bears the Alaska State walrus registration tags or post-law ivory that HAS BEEN CARVED OR SCRIMSHAWED BY AN ALASKAN NATIVE (Eskimo) is legal to buy , sell, and own. Any ivory that was/is obtained after 12-21-1972 IS NOT LEGAL TO BUY OR SELL UNLESS" both parties are Eskimo... BUT, it is LEGAL TO OWN. Permits are required(as to the laws above) to export the ivory out of the U.S.
FOSSIL WALRUS IVORY: No restrictions. It is LEGAL TO BUY, SELL AND OWN anywhere in the U.S. The exportation of this ivory DOES require a permit.
Traders in Elephant Leather
How will the commercial use of elephant leather and other non-ivory products be affected?
The special rule allows the import and export of non-ivory African elephant products, provided the permit requirements in 50 CFR Parts 13 and 23 have been met and does not restrict interstate commerce in African elephant specimens. Commercial import, export and interstate commerce will be prohibited for non-antique items without an ESA permit when the special rule is removed. This prohibition will apply to trade in all elephant parts and products, including products made from elephant leather. Issuance of ESA permits for threatened species must be for “scientific purposes, the enhancement of propagation or survival, economic hardship, zoological exhibition, educational purposes, incidental taking, or special purposes consistent with the purposes of the Act.”
Current owners of elephant ivory, rhino horn, and other items derived from these species
How will ownership and use of personally owned item be affected?
Personal possession of elephant ivory and other materials made from endangered or threatened species that were legally acquired will remain legal.
Large Ivory Carving
Credit: Rob Young CC BY 2.0
Worked African elephant ivory imported for personal use as part of a household move or as an inheritance and worked African elephant ivory imported as part of a musical instrument will continue to be allowed provided the worked ivory has not subsequently been transferred from one person to another person in pursuit of financial gain or profit and the item is accompanied by a valid CITES document. The import of raw African elephant ivory, other than sport-hunted trophies, is prohibited.
Import and export of other ESA-listed species, such as Asian elephant or rhinoceros, for noncommercial purposes either with an ESA permit or if the specimen qualifies as pre-ESA or as an antique under the ESA may continue.
Commercial export and interstate commerce of all non-antique African elephant ivory will be prohibited without an ESA permit. The export and sale in interstate commerce of non-antique specimens of other ESA-listed species continues to be prohibited without an ESA permit.
With finalization of the amended “use-after-import” provisions in our CITES regulations, species listed in CITES Appendix I or in Appendix II with an annotation for noncommercial purposes (such as African and Asian elephant or one of the species of rhinoceros) may only be used for noncommercial purposes unless it can be proved that the specimen was imported prior to the restrictive listing.
Our CITES regulations (50 CFR 23.55) place limits on how CITES Appendix-I and certain Appendix-II specimens may be used after import into the United States. The purpose is to prevent commercial use of specimens after import into the United States when only noncommercial trade is allowed under CITES. We are in the process of finalizing a proposed rule updating our CITES regulations, including amendments to the “use-after-import” provisions. Use after import of Appendix-I specimens is limited to noncommercial purposes except when a person can demonstrate that the specimens were imported before the species was listed in Appendix I, or they were imported under a pre-Convention certificate or other CITES exemption document. For further information, see our answers on antiques, personally owned items and musical instruments.
Museums and educational institutions
How will the movement of museum, educational and scientific specimens be affected?
The special rule allows the import or export of museum, educational or scientific specimens from African elephants provided all CITES requirements are met. Interstate and foreign commerce of elephant specimens is also allowed and no ESA permit is required. Revocation of the special rule would mean that all of the prohibitions and permitting requirements for threatened species would apply to these specimens. ESA authorization would be required to conduct interstate or foreign commerce, import or export of such specimens. Issuance of ESA permits for threatened species must be for “scientific purposes the enhancement of propagation or survival economic hardship zoological exhibition, or educational purposes, or incidental taking, or special purposes consistent with the purposes of the Act.” Specimens moved across state lines for non-commercial purposes do not require ESA authorization. Specimens that qualify as pre-ESA or as antiques under the ESA also would not require ESA authorization for interstate or foreign non-commercial movements. Non-commercial loans within the United States as part of research, educational programs, or museum exhibitions would not require ESA authorization. For more information, see the information above on antiques.
Proposed changes to the AECA moratorium would allow for the continued import of worked African elephant ivory imported as part of a traveling exhibition, provided the worked ivory was legally acquired prior to February 26, 1976; the worked elephant ivory has not subsequently been transferred from one person to another person in pursuit of financial gain or profit; and the item is accompanied by a valid CITES traveling exhibition certificate.
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