Many of you reading this will see Director's Order 210 for the first time and will, I suspect, wonder why you didn't see the lights on the oncoming train. Last summer I attended a briefing from Fish and Wildlife on the importation and sale of endangered species material - which runs the gamut from animal products to fauna. During the conversation on ivory the representative from Fish and Wildlife casually mentioned that ivory that was legally imported and sold once could not be legally sold again. This inspired many questions that were not adequately answered, but it made a number of my colleagues very uneasy.
Fish and Wildlife issued Director's Order 210 on February 24 effective immediately which codified our concerns. I have printed below in its entirety the order with a separate accompanying fact sheet. Mike McCullough, a highly regarded lawyer and specialist in these matters has been working with the art and antiques community to come up with a solution. I have also in this newsletter printed that in its entirety.
The Endangered Species Act is complex, confusing and encumbered by ever changing regulations that in themselves tend to become the governing force of the very broad and somewhat obscure legislation. I have provided background material with links in a separate piece in this newsletter. In the event you find this material tedious, I have highlighted and italicized sections of interest.
Some might say that we need to protect the elephants and we all need to sacrifice to preserve our environment. I wish it were that simple. Symbolic gestures obfuscate the real problems and the solutions. I believe Order 210 is a beginning and not an end and real motive of our government is to stop the selling of any endangered species regardless of past laws or the age of the object. Yes it is amazing what you can do with a pen and a phone.
Director's Order
210
United States
Department of the Interior
FISH AND WILDLIFE
SERVICE Washington, D.C. 20240
DIRECTOR’S ORDER NO.
210
Subject:
Administrative Actions to Strengthen U.S. Trade Controls for Elephant Ivory,
Rhinoceros Horn, and Parts and Products of Other Species Listed Under the
Endangered Species Act (ESA)
Sec. 1 What is the
purpose of this Order?
a. The United States
released the first National Strategy for Combating Wildlife Trafficking on
February 11, 2014. One of the three strategic priorities of the National
Strategy is to strengthen domestic and global enforcement, including assessing
related laws, regulations, and enforcement tools.
b. This Order
establishes policy and procedure for U.S. Fish and Wildlife Service (Service)
employees to implement the National Strategy as it relates to the trade in
elephant ivory, rhinoceros horn, and parts and products of other ESA-listed
species.
c. The Order
supersedes all previous policies on the June 9, 1989, African Elephant
Conservation Act (AECA) import moratorium.
Sec. 2 What will
Service employees do under this Order?
a. Service employees
must strictly implement and enforce all criteria under the ESA antique
exception (16 U.S.C. 1539 (h)). 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 burden of proof standard is high to ensure that items
that people claim are antiques under the ESA exception are authentic and
qualify for the exception. See Appendix 1 for additional guidance.
b. Service employees
must strictly implement and enforce the June 9, 1989, AECA moratorium (54 Fed.
Reg. 24758) on the importation of raw and worked African elephant ivory while,
as a matter of law enforcement discretion, allowing importation of certain parts
and products, as follows:
(1) Raw or worked
African elephant ivory imported by an employee or agent of a Federal, State, or
tribal government agency for law enforcement purposes.
(2) Raw or worked
African elephant ivory imported for genuine scientific purposes that will
contribute to conservation of the species.
(3) Worked African
elephant ivory imported for personal use as part of a household move or as part
of an inheritance, provided that the worked elephant ivory:
· Was legally acquired prior to February 26, 1976;
· Has not subsequently been transferred from one
person to another person for financial gain or profit since February 26, 1976;
and
· The item is accompanied by a valid Convention on
International Trade in Endangered Species of Wild Fauna and Flora (CITES)
pre-Convention certificate.
(4) Worked African
elephant ivory imported as part of a musical instrument, provided that the
worked elephant ivory:
· Was legally acquired prior to February 26, 1976;
· Has not subsequently been transferred from one
person to another person for financial gain or profit since February 26, 1976;
· The person or group qualifies for a CITES musical
instrument certificate; and
· The musical instrument containing elephant ivory
is accompanied by a valid CITES musical instrument certificate or an equivalent
CITES document that meets all of the requirements of CITES Resolution Conf.
16.8.
(5) Worked African
elephant ivory imported as part of a travelling exhibition, provided that the
worked elephant ivory:
· Was legally acquired prior to February 26, 1976;
· Has not subsequently been transferred from one
person to another person for financial gain or profit since February 26, 1976;
· The person or group qualifies for a CITES
travelling exhibition certificate; and
· The item containing elephant ivory is accompanied
by a valid CITES travelling exhibition certificate or an equivalent CITES
document that meets the requirements of 50 CFR 23.49.
Sec. 3 Does this
Order affect other legal requirements?
a. The AECA
moratorium does not apply to raw or worked African elephant ivory imported as
part of a sport-hunted trophy, or to ivory from other species.
b. Nothing in this
Order affects the ESA or CITES in-transit standards and requirements.
c. The AECA
moratorium does not apply to the tusks on live elephants, so nothing in this
Order affects the importation of live elephants.
d. Nothing in this
Order affects the prohibitions under the AECA or the ESA. In addition to the
terms of the June 9, 1989, moratorium and the prohibitions under the AECA, all
applicable legal requirements for the importation of African elephant ivory under
50 CFR Parts 13, 14, 17, and 23 must also be met.
Sec. 4. When is this
Order effective? This Order is effective immediately. It remains in effect
until incorporated into the Service Manual or until amended, superseded, or
revoked, whichever comes first. If we do not amend, supersede, or revoke it,
the Order will terminate in 18 months.
/sgd/ Daniel M. Ashe
DIRECTOR
Date: February 25,
2014
Fact Sheet
Questions and
Answers about Director’s Order No. 210
Administrative
Actions to Strengthen U.S. Trade Controls for
Elephant Ivory,
Rhinoceros Horn, and Parts and Products of other ESA-listed Species
What does the
Director’s Order do?
The Order instructs
U.S. Fish and Wildlife Service personnel to strictly enforce existing
restrictions on the commercial trade of elephant ivory and on the import,
export and sale of items made from other protected species under the “antiques
exception” of the Endangered Species Act (ESA).
What is the ESA
antiques exception?
Under the ESA, the
import, export and interstate sale (sale across state lines) of listed species
or their parts is prohibited without an ESA permit except for items that
qualify as “antique”.
To qualify as
antique, the importer, exporter or seller must show that the item meets all of
these criteria:
• It is 100 years or
older;
• It is composed in
whole or in part of an ESA-listed species;
• It has not been
repaired or modified with any such species after December 27, 1973; and
• It is being or was
imported through an endangered species “antique port.”
This strict
enforcement of the ESA applies to items made from rhinoceros, sea turtle and
any other ESA-protected species.
Can I import antique
items containing African elephant ivory for commercial purposes?
No. The Service no
longer allows any commercial importation of African elephant ivory. This
prohibition, which was originally established via the 1989 African Elephant
Conservation Act (AECA) moratorium, will apply even to items that qualify as
antiques under the ESA.
Why did the Service
issue this Order?
The changes are
necessary for the Service to protect populations of elephants and other
endangered or threatened species that are subject to illegal trade. Poaching
and illegal trade have been decimating African elephant and rhinoceros
populations in recent years. Traffickers have been claiming that elephant ivory
that has been poached and illegally exported from the country of origin is
‘antique’, sometimes even staining it to make it look old. The changes in this
Order are among a set of administrative actions specifically called for under
the National Strategy on Combating Wildlife Trafficking, which was issued by
President Obama on February 11, 2014.
Will any imports of
African elephant ivory be allowed under the AECA moratorium?
Yes. The AECA itself
authorized the continued importation of legally acquired sport-hunted trophies
with proper documentation. We will continue to allow the import of sport-hunted
trophies and certain other types of non-commercial imports.
What African
elephant ivory can still be imported?
The following can
still be imported:
• Raw or worked
African elephant ivory imported by a federal, state or tribal agency for law
enforcement purposes
• Raw or worked
African elephant ivory imported for scientific purposes that will contribute to
the conservation of African elephants
• Worked African
elephant ivory imported for personal use as part of a household move or an
inheritance that meets specific criteria (see below)
• Worked African
elephant ivory imported as part of a musical instrument that meets specific
criteria (see below)
• Worked African
elephant ivory imported as part of a traveling exhibition that meets specific
criteria (see below)
• African elephant
ivory as part of a personal sport-hunted trophy
Why is the Service
allowing these limited imports to continue, but restricting the importation of
antiques made from African elephant ivory?
The United States is
a market for objects made from African elephant ivory, which drives increasing
poaching of wild elephants. The Service has determined that it must take every
administrative and regulatory action to cut off import of raw and worked elephant
ivory where that importation is for commercial purposes. Allowing imports for
law enforcement and scientific purposes is in line with the Service’s mission
to help conserve African elephants and stop trafficking in African elephant
ivory. The other limited exceptions allow movement into the United States
legally possessed African elephant ivory that predates the listing under the
Convention on the International Trade in Endangered Species of Wild Fauna and
Flora (CITES) for personal use as part of a household move or inheritance,
musical performances, and traveling exhibitions. Each of these types of import
must meet specific criteria. And unlike the commercial antiques trade, none of
these types of imports has been used by smugglers to “cover” trafficking in
newly poached ivory.
How can worked
African elephant ivory be imported for personal use?
You may only import
worked African elephant ivory for personal use as part of a household move or
as part of an inheritance provided that the ivory was legally acquired before
February 26, 1976; the ivory has not subsequently been transferred from one person
to another person in pursuit of financial gain or profit since February 26,
1976; and the item is accompanied by a valid Convention on International Trade
in Endangered Species of Wild Fauna and Flora (CITES) pre-Convention
certificate.
How can worked
African elephant ivory be imported as part of a musical instrument?
You may import
worked African elephant ivory as part of a musical instrument provided that the
ivory was legally acquired before February 26, 1976; the ivory has not
subsequently been transferred from one person to another person in the pursuit
of financial gain or profit since February 26, 1976; the person or group
qualifies for a CITES musical instrument certificate; and the musical
instrument containing elephant ivory is accompanied by a valid CITES musical
instrument certificate or an equivalent CITES document that meets the
requirements of CITES Resolution Conf. 16.8.
How can worked
African elephant ivory be imported as part of a traveling exhibition?
Worked African
elephant ivory may be imported as part of a traveling exhibition, such as a
museum or art show, provided that the ivory was legally acquired prior to
February 26, 1976; the worked elephant ivory has not subsequently been
transferred from one person to another in the pursuit of financial gain or
profit since February 26, 1976; the person or group qualifies for a CITES
traveling exhibition certificate; and the item containing elephant ivory is
accompanied by a valid CITES traveling exhibition certificate or an equivalent
CITES document that meets the requirements of CITES Resolution Conf. 16.8.
Can raw African
elephant ivory be imported for personal use, as a musical instrument, or as
part of a traveling exhibition?
No. Raw African
elephant ivory can only be imported as part of a personal sport-hunted trophy.
What is an
endangered species antique port?
In establishing the
antique exception under the ESA, Congress directed what was then the U.S.
Customs Service to identify specific ports of entry where antiques made from
endangered and threatened species can be imported. There are 13 of these
locations: 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.
What are the
requirements to import an antique made from an ESA-listed species?
• ESA antiques may
only be imported at a port designated for the import of ESA antiques.
• The import of ESA
antiques requires the filing of a Declaration for Import or Export of Wildlife
(Form 3-177) with documentation demonstrating that the item meets the ESA
exception.
• For ESA antiques
made from species that are also listed under CITES, the importer or the
importer’s agent must file Form 3-177 and all required documentation directly
with the Service.
• For ESA antiques
made from species that are not listed under CITES, the importer or the
importer’s agent may file Form 3-177 and all accompanying documentation with
the U.S. Customs and Border Protection (CBP) Port Director. CBP will forward
all documentation to the Service for a legal determination prior to release.
The importer or the importer’s agent may also file directly with the Service
and provide the necessary clearance to CBP.
• The commercial
import of ESA antiques must meet all licensing and fee requirements for
wildlife imports and exports.
• The import of ESA
antiques made from species that are also listed under CITES requires a
pre-Convention certificate issued by the CITES Management Authority of the
(re)exporting country as part of the declaration
• The import of ESA
antiques does not require an ESA import permit.
• The importer must
provide documented evidence of species identification and age to demonstrate
that the article qualifies as an ESA antique. This may include a qualified
appraisal, documents that provide detailed provenance, and/or scientific
testing. Notarized statements or affidavits by the importer or a CITES
pre-Convention certificate alone are not necessarily adequate proof that the
article meets the ESA exception.
What are the
requirements to export an antique made from an ESA-listed species?
• ESA antiques may
only be exported at a Service designated port or at a port authorized under a
designated port exception permit.
• The export of ESA
antiques must meet all of the Service’s standard declaration, license, fee,
notification, and clearance requirements for wildlife trade. CBP is not
involved in the export of such antiques.
• The export of ESA
antiques does not require an ESA export permit.
• The export of ESA
antiques from species that are also listed under CITES requires a
pre-Convention certificate issued by the U.S. CITES Management Authority as
part of the export declaration package.
• The exporter must
prove that the antique article had been previously imported and met all of the
criteria for import under the ESA antique exception.
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 appraisal 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.
• Facts we will
examine in determining the reliability of the appraisal:
o A description of
the article in sufficient detail for a person who is not generally familiar
with the type of article to determine that the appraisal is about the article
in question.
o The name and
address of the qualified appraiser, or if the appraiser is a partner, an
employee, or an independent contractor engaged by a person other than the
person claiming the exception, the name and address of the partnership or the
person who employs or engages the appraiser.
o The qualifications
of the appraiser who signs the appraisal, including the background, experience,
education, and any membership in professional appraiser associations.
o The date on which
the article was appraised.
o The scientific
method in detail used to determine the age or species.
o Descriptive
information on the article including but not limited to: the size of the
article; the medium; the artist or culture; approximate date the article was
created; and a professional quality image of the article.
o A detailed history
of the article including proof of authenticity.
o The facts on which
the appraisal was based including analyses of similar works by the artist on or
around the creation date.
What articles do not
qualify for the antique exception under the ESA?
• Articles that are
less than 100 years old.
• Articles that are
not composed in whole or in part of an ESA-listed species.
• Articles with
repairs or modifications made on or after December 28, 1973, to the specific
part or component of the article that is made of the ESA-listed species
regardless of the age or origin of the parts used to repair or modify the
specimen.1
• Articles that have
been repaired with the addition of any part of the ESA-listed species or
modified with the addition of any part of the ESA-listed species on or after
December 28, 1973 regardless of the age or origin of the parts used to repair
or modify the specimen.
• Articles that were
imported prior to the creation of designated ports for ESA antiques (September
22, 1982).
• Articles that are,
or were, imported on or after September 22, 1982 at a port that was not
designated for ESA antiques.
• Articles that were
created in the United States and never imported.
How will rigorous
enforcement of the criteria for the ESA antiques exception affect import,
export and interstate sale of African elephant ivory?
As noted previously,
commercial imports of African elephant ivory antiques are prohibited under the
AECA moratorium and will no longer be allowed under any circumstance.
Under a special rule
that has not yet been revoked, items made from African elephant ivory can still
be sold across State lines and exported whether they qualify for the ESA
antiques exception or not. We are working on the regulatory action needed to
change this regulation. In the meantime, exporters of worked African elephant
ivory must comply with CITES requirements and be able to document that the item
is made from African (rather than Asian) elephant ivory. 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 will rigorous
enforcement of the criteria for the ESA antiques exception affect import,
export and interstate sale of Asian elephant ivory or products made from other
ESA-listed species?
The person engaging
in these activities will need to show that the item meets all of the ESA
criteria for antiques.
What are the
penalties for violating the ESA?
1 Items with repairs
or modifications to parts or components of the item not made from an ESA-listed
species may be entitled to the exception if all other requirements are met.
Items that have been repaired or modified prior to December 28, 1973 may also
be entitled to the exception if all other requirements are met.
The maximum penalty
for violating the ESA is one year in prison and a $100,000 fine for an
individual, $200,000 for an organization. Those who engage in illegal wildlife
trade under the ESA may also face prosecution under the Lacey Act's
anti-trafficking provisions (maximum penalty of 5 years in prison and fines of
$250,000 for an individual or $500,000 for an organization).
Is it illegal to
create or submit false paperwork to claim that an item qualifies as antique
under the ESA antique exception?
Yes. The Lacey Act
makes it illegal to produce or submit any false record, account, label for, or
false identification of wildlife being transported in interstate or
international commerce (maximum penalty 5 years in prison and fines of $250,000
for an individual, $500,000 for an organization). Making false statements and
using false documents violates 18 U.S.C. 1001 (maximum penalty of 5 years in
prison and fines of $250,000 for an individual, $500,000 for an organization).
