Thursday, March 13, 2014
My Word Winter 2014
Endangered Species Act Director's Order 210 - Why Should You Care
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).
Art Dealer Groups Propose Solution to Ivory Ban
Art Dealer Groups Propose Solution to Ivory Ban
by mcculloughllc
The League and NAADAA Send Letter to the Director of the Fish and Wildlife Service
Staff Writer
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 a prominent 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, another 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
mcculloughllc | March 7, 2014 at 3:31 pm | Tags: Elephant Ivory, Fish and Wildlife, Ivory, Ivory Ban | Categories: Art, Culture, Endangered Speices, News | URL: http://wp.me/pO809-21
Mike McCullough
Michael McCullough, Esq. has extensive experience in art, cultural heritage, and international trade matters. He is a former associate counsel to Sotheby's worldwide where he advised the company on the sale and financing of fine art, the decorative arts, cultural property, antiques, jewelry and special collections. Mr. McCullough is credited with the development and implementation of global policies and procedures related to the acquisition for consignment and sale of some of the greatest artworks in the world.
Mr. McCullough is also experienced in U.S. Customs regulations, international trade agreements, export controls, economic sanctions constraints, anti-corruption rules, U.S. Fish and Wildlife regulations, and other government agency requirements. Mr. McCullough has represented clients before U.S. Customs and Border Protection, the Department of State, Immigration and Customs Enforcement, the U.S. Fish and Wildlife Service, the Food and Drug Administration, the United States district courts and the Court of Appeals for the Second Circuit.
Mr. McCullough is also experienced in U.S. Customs regulations, international trade agreements, export controls, economic sanctions constraints, anti-corruption rules, U.S. Fish and Wildlife regulations, and other government agency requirements. Mr. McCullough has represented clients before U.S. Customs and Border Protection, the Department of State, Immigration and Customs Enforcement, the U.S. Fish and Wildlife Service, the Food and Drug Administration, the United States district courts and the Court of Appeals for the Second Circuit.
Forbes Magazine Thoughts on Fish and Wildlife Order 210
Obama
Administration Treats Antique Collectors And Dealers As Criminals: New Ivory
Rules Put Elephants At Increased Risk
The Obama administration is preparing to treat virtually every antique
collector, dealer, and auctioneer in America—and anyone else who happens to own a piece of ivory—as a
criminal. In the name of saving elephants, the administration is effectively
banning the sale of any object containing any ivory, even if legally acquired
decades ago. Doing so will weaken conservation efforts by expanding the ivory
black market, diverting enforcement resources away from true contraband ivory,
and enriching those engaged in the illegal ivory trade.
In
Africa poachers are killing elephants for their tusks. Ill-equipped and
under-financed African governments are unable to stop the slaughter. Western
industrialized states have responded by pushing sales restrictions. Under the
Convention on the International Trade in Endangered Species of Wild Fauna and
Flora (CITES) only ivory from before 1989 can be sold. Official certification
is required for international shipment. Special CITES approval is necessary for
even governments to market post-1989 ivory.
Unfortunately,
ivory prohibition has not protected the animals. By far the greatest demand for
new ivory comes from Asia, though some smuggling occurs elsewhere, including
the West. However, most ivory in America arrived legally many years ago. A
beautiful material easily worked by skilled craftsmen, ivory has provided
jewelry, pool cues, piano keys, canes, clocks, toys, musical instruments, card
cases, beer steins, balls, seals, fans, gun stocks, chess sets, crosses,
netsukes, sculptures, poker chips, figurines, die, handles, and a myriad of
other decorative objects. These items have made their way into public museums,
private collections, dealer inventories, and auction showrooms across America.
The
elephants which provided the ivory for these items are long
dead. The owners
have acted responsibly and legally, following the rules as they invested
hundreds, thousands, or tens of thousands of dollars in objects d’art. Most
collectors and dealers don’t traffic in poached ivory.
Until
now the rules were simple and sensible. Ivory imported legally, that is, prior
to 1989 or after 1989 with CITES certification that international standards
were met, could be sold. Older ivory usually can be identified by coloring,
stains, style, wear, quality, subject, and more. Some features can be faked,
but most of the older work simply isn’t replicated today.
Moreover,
the burden of proof fell on the government, which had to prove that you
violated the law. That standard is inconvenient for zealous prosecutors. But
that’s the way America normally handles both criminal and civil offenses.
However,
last year the administration formed an interagency task force and an Advisory
Council on Wildlife Trafficking. The latter lacked any representative of the
thousands of responsible Americans who own legal ivory. Collectors and dealers
are numerous, but not well-organized. Existing associations have limited
memberships and narrowly focused activities.
The Advisory Council recommended prohibition. In mid-February the
administration issued its new plan, which was as close as possible to a total
ban without being a total ban. (The new administration policy also applies to
rhinoceros.) In practice, virtually every collector, dealer, auctioneer, and
other person—who may simply
have picked up or inherited some ivory—in America is banned from selling ivory
items, even if acquired legally, owned for decades, and worth hundreds or
thousands of dollars. Indeed, the collective value of that property runs into
the tens or even hundreds of millions of dollars. Every flea market, junk shop,
estate sale, antique store, auction showroom, and antique show is at risk of
raids, confiscations, and prosecutions. And not one additional elephant is
likely to survive as a result.
As an
administrative pronouncement, rather than legislative enactment, the rules
could change. However, the guidance from the U.S. Fish and Wildlife Service
indicates that the federal government will target almost anyone attempting to
buy or sell ivory of any sort.
First,
no imports are allowed, not even antiques. Until now the latter could be
brought to America with a CITES certificate. After all, no one is likely to
mistake an early 18th century ivory chess set or beer stein as made of modern
ivory. Nor does it matter in which country, say Britain or America, an old
piece of ivory resides. Now U.S. collectors are cut off from the rest of the
world, for no purpose.
Second,
all exports are banned, except antiques (defined as over a century old) in what
the Fish and Wildlife Service says are “exceptional circumstances, as permitted
under” the Endangered Species Act. Exactly what that means is unclear. At best
the administration appears to be raising the administrative and cost burdens of
exporting to countries which already limit ivory imports to items with
appropriate CITES documentation. Nothing will be gained by raising the cost and
inconvenience to Americans.
Or the
new rule may restrict the sale of items currently allowed, thereby hindering
people in disposing of their legal collections. Yet creating a new Ivory
Curtain that prevents someone from selling his or her ivory canes to someone
in, say, Germany will save no elephants.
Third,
interstate transactions are prohibited, except for antiques. And, explained
Fish and Wildlife: “Sellers of antiques in interstate commerce must prove
through documented evidence that items qualify as bona fide antiques.”
Unfortunately, such evidence rarely exists: the Victorians, among many others,
did not routinely fill out notarized statements attesting to the age of their
ivory possessions. The cost of procuring a CITES certificate is likely to be
prohibitive for items of modest value. Thus, the sale of almost all ivory
across state lines is effectively banned. Unclear is whether one can even move
one’s ivory collectibles to another state and later sell them. Could a moving
company be penalized for its participation?
Fourth, intrastate commerce, said the agency, is “prohibited unless
seller can demonstrate item was lawfully imported prior to” 1990, when the
international ban took effect. But how does someone “demonstrate” when, say, a
gift from his or her parents was imported? If the new burden of proof is not
satisfied, then the item is not marketable even though acquired and owned
legally—and until now
saleable legally. (Proposals for state bans also are circulating, including in
New York.) In short, the administration has enacted practical national
prohibition.
The
interstate restriction is uniquely perverse. Antique shows and the internet
have created a vibrant national market. Forcing dealers to divide their stock
and segment items which cannot be sold over state lines will be chaotic and
expensive. Moreover, not all states are created equal. Collectors and dealers
tend to be concentrated in major states. The administration rule prevents
people in low-population states, say Wyoming, from retiring as collectors.
Instead, they will be forced to die with their old ivory-keyed pianos and
ivory-handled knives.
Even
more problematic is the attempt by executive fiat to shift the burden of proof
for violating the law. I have a simple and cheap ivory chess set which I
purchased in England while my family lived there more than 40 years ago. Alas,
I have no proof of its age. How can I “demonstrate” its provenance in order to
avoid confiscation and prosecution? Shouldn’t I enjoy due process before the
government destroys the value of property I legally acquired?
The administration approach unfairly penalizes thousands of
collectors, dealers, and other Americans. They followed the law. They spent
money in reliance on the rules. And now the government has declared their
collections and inventories to be essentially worthless. Only those with money—and the most valuable ivory pieces—will
be able to legally comply. If you possess a $20,000 carving, you have an
incentive to jump through the administrative and financial hoops to get a CITES
certificate. If you possess $20,000 worth of average ivory
netsukes, most worth
perhaps $100 or $200, then your holdings are effectively valueless.
Why is
the administration treating so many Americans as criminals? Fish and Wildlife
claimed: “we believe that a nearly complete ban on commercial elephant ivory
and rhino horn trade is the best way to ensure that U.S. markets do not
contribute to the decline of these species in the wild.” But America’s many
legal items legally imported decades or centuries ago and legally owned for
years are not fueling poaching today.
The
administration complained of the difficulty in distinguishing ivory imported
legally and illegally. No doubt, banning everything offers seeming ease of
enforcement, but such a policy fails to distinguish between guilt and
innocence.
Moreover,
most old ivory, given its manifold unique characteristics, is easily
distinguishable from new work. Modern illegal ivory is mostly for items
destined for the dominant Asian market; European carving disappeared decades
ago. Some objects end up in America, but far fewer than in Asia. Indeed, the
black market price of illegal raw ivory in the U.S. is one-fourth that in
China.
The
illegal ivory supply also is small compared to that of legal ivory. Rather than
ban the latter in an attempt to limit the former, the government should
concentrate on aiding African countries in protecting their elephants, better
interdicting illegal imports, and identifying sellers who specialize in new
ivory.
In
fact, targeting owners of legal ivory will perversely undermine such
enforcement efforts. Criminalizing most ivory sales in America will vastly
expand the ivory black market and significantly dilute enforcement resources.
First, as formerly legal items, which pose no threat to elephants,
fill the pool of illegal ivory sales, the government will find it harder to
locate new contraband ivory—which
actually encourages poaching. Collectors and dealers are not likely to supinely
accept an arbitrary federal diktat destroying the value of their holdings.
Instead, faced with legalized theft of their property, many will understandably
go over to the dark side. And there they will find ample opportunities to buy
and sell ivory goods.
Ivory
commerce will continue, only disguised above ground and more often shifted
underground. There will be increased sales of “faux ivory,” “grained,” “bone,”
“Chinese bone,” and “plastic” items of surprising artistic appeal. Ebay will
become a prime sales forum, with accurate descriptions, detailed photos, and
frank conversations shifted off-line. Collector organizations will become more
important as private sales networks. More objects will privately pass among
dealers and collectors, never reaching public view.
The
interstate ban, too, will be flouted. Absent roadblocks at state boundaries,
ivory collectibles will continue to transit the nation for sale. Brokers will
be hired to buy and sell, to ensure items appear not to cross state lines.
Owners also may risk taking items to other nations without similar
restrictions.
Moreover, invoices will be created, if necessary, to demonstrate that
transactions remain intrastate. Faux age will be documented. Even CITES
certificates affirming an item’s antique status—which until now have been irrelevant for collectors and
dealers not shipping internationally—may be faked.
Some
collectors and dealers will even turn to sellers of new illegal ivory. Those
already participating in the illegal market are obvious, if distasteful,
commercial conduits for items newly made illegal. The additional business will
expand the networks and increase the profits of those dealing with poachers.
Which will only encourage the killing of more elephants.
Finally, overtaxed federal Fish and Wildlife agents—currently just a couple hundred
nationally—may prefer to go after the easy targets, such as the local antique
flea market, rather than secretive and well-financed smugglers. The White House
said it did not intend to prosecute people selling “trinkets,” but does that
mean $50 or $500? Moreover, the agency does not want the new rules to appear to
be a dead letter.
The
occasional arrest in such cases won’t end the ivory trade, but will generate
sufficient uncertainty to shift even more the value of newly outlawed ivory
from owners to professional traffickers. Further, every dollar spent and person
deployed by Washington to grab a chess set brought back from Japan by an Army
veteran 60 years ago will be taken from investigations of criminals like the
two Manhattan jewelers caught in 2012 with $2 million worth of new ivory
merchandise.
The de
facto ban likely will encourage Fifth Amendment litigation. The government’s
policy, imposed by administrative fiat, could be considered a government
taking. In practice, Washington is banning all sales except for a few
opportunities available to only a few well-heeled individuals. The potentially
huge losses imposed on so many Americans across the nation may force the
Supreme Court to reconsider endangered species rules more often applied to very
limited markets, such as for eagle feathers.
The
administration is engaging in the worst sort of moral vanity, punishing
blameless Americans so prohibitionists can feel better despite their own policy
failures. Those purporting to do good are intent on doing it at someone, anyone
else’s expense.
The
administration should withdraw its rules for at least a substantial rewrite.
Moreover, Congress should overturn this unfair attack on thousands of
law-abiding Americans. Legislators should block the arbitrary rules, defund
unfair enforcement practices, cut agency staff if necessary, and set statutory
standards to protect those who own legal ivory. The rule of law should apply to
all Americans, including collectors, dealers, and auctioneers.
The mass killing of elephants is tragic. But demand for new ivory, not
items legally imported decades or centuries ago, fuels the trade. Governments
should penalize poachers and their seller allies—not responsible collectors and dealers who have followed the
rules.
Indeed,
the administration’s new policy is worse than unfair. They are
counterproductive. They will expand the illegal ivory market, divert
enforcement resources, and push owners of legal ivory into the illegal trade.
Which means more elephants are likely to die. Surely that is not the legacy
desired by President Obama
Obama
Administration Treats Antique Collectors And Dealers As Criminals: New Ivory
Rules Put Elephants At Increased Risk
The Obama administration is preparing to treat virtually every antique
collector, dealer, and auctioneer in America—and anyone else who happens to own a piece of ivory—as a
criminal. In the name of saving elephants, the administration is effectively
banning the sale of any object containing any ivory, even if legally acquired
decades ago. Doing so will weaken conservation efforts by expanding the ivory
black market, diverting enforcement resources away from true contraband ivory,
and enriching those engaged in the illegal ivory trade.
In
Africa poachers are killing elephants for their tusks. Ill-equipped and
under-financed African governments are unable to stop the slaughter. Western
industrialized states have responded by pushing sales restrictions. Under the
Convention on the International Trade in Endangered Species of Wild Fauna and
Flora (CITES) only ivory from before 1989 can be sold. Official certification
is required for international shipment. Special CITES approval is necessary for
even governments to market post-1989 ivory.
Unfortunately,
ivory prohibition has not protected the animals. By far the greatest demand for
new ivory comes from Asia, though some smuggling occurs elsewhere, including
the West. However, most ivory in America arrived legally many years ago. A
beautiful material easily worked by skilled craftsmen, ivory has provided
jewelry, pool cues, piano keys, canes, clocks, toys, musical instruments, card
cases, beer steins, balls, seals, fans, gun stocks, chess sets, crosses,
netsukes, sculptures, poker chips, figurines, die, handles, and a myriad of
other decorative objects. These items have made their way into public museums,
private collections, dealer inventories, and auction showrooms across America.
The
elephants which provided the ivory for these items are long
dead. The owners
have acted responsibly and legally, following the rules as they invested
hundreds, thousands, or tens of thousands of dollars in objects d’art. Most
collectors and dealers don’t traffic in poached ivory.
Until
now the rules were simple and sensible. Ivory imported legally, that is, prior
to 1989 or after 1989 with CITES certification that international standards
were met, could be sold. Older ivory usually can be identified by coloring,
stains, style, wear, quality, subject, and more. Some features can be faked,
but most of the older work simply isn’t replicated today.
Moreover,
the burden of proof fell on the government, which had to prove that you
violated the law. That standard is inconvenient for zealous prosecutors. But
that’s the way America normally handles both criminal and civil offenses.
However,
last year the administration formed an interagency task force and an Advisory
Council on Wildlife Trafficking. The latter lacked any representative of the
thousands of responsible Americans who own legal ivory. Collectors and dealers
are numerous, but not well-organized. Existing associations have limited
memberships and narrowly focused activities.
The Advisory Council recommended prohibition. In mid-February the
administration issued its new plan, which was as close as possible to a total
ban without being a total ban. (The new administration policy also applies to
rhinoceros.) In practice, virtually every collector, dealer, auctioneer, and
other person—who may simply
have picked up or inherited some ivory—in America is banned from selling ivory
items, even if acquired legally, owned for decades, and worth hundreds or
thousands of dollars. Indeed, the collective value of that property runs into
the tens or even hundreds of millions of dollars. Every flea market, junk shop,
estate sale, antique store, auction showroom, and antique show is at risk of
raids, confiscations, and prosecutions. And not one additional elephant is
likely to survive as a result.
As an
administrative pronouncement, rather than legislative enactment, the rules
could change. However, the guidance from the U.S. Fish and Wildlife Service
indicates that the federal government will target almost anyone attempting to
buy or sell ivory of any sort.
First,
no imports are allowed, not even antiques. Until now the latter could be
brought to America with a CITES certificate. After all, no one is likely to
mistake an early 18th century ivory chess set or beer stein as made of modern
ivory. Nor does it matter in which country, say Britain or America, an old
piece of ivory resides. Now U.S. collectors are cut off from the rest of the
world, for no purpose.
Second,
all exports are banned, except antiques (defined as over a century old) in what
the Fish and Wildlife Service says are “exceptional circumstances, as permitted
under” the Endangered Species Act. Exactly what that means is unclear. At best
the administration appears to be raising the administrative and cost burdens of
exporting to countries which already limit ivory imports to items with
appropriate CITES documentation. Nothing will be gained by raising the cost and
inconvenience to Americans.
Or the
new rule may restrict the sale of items currently allowed, thereby hindering
people in disposing of their legal collections. Yet creating a new Ivory
Curtain that prevents someone from selling his or her ivory canes to someone
in, say, Germany will save no elephants.
Third,
interstate transactions are prohibited, except for antiques. And, explained
Fish and Wildlife: “Sellers of antiques in interstate commerce must prove
through documented evidence that items qualify as bona fide antiques.”
Unfortunately, such evidence rarely exists: the Victorians, among many others,
did not routinely fill out notarized statements attesting to the age of their
ivory possessions. The cost of procuring a CITES certificate is likely to be
prohibitive for items of modest value. Thus, the sale of almost all ivory
across state lines is effectively banned. Unclear is whether one can even move
one’s ivory collectibles to another state and later sell them. Could a moving
company be penalized for its participation?
Fourth, intrastate commerce, said the agency, is “prohibited unless
seller can demonstrate item was lawfully imported prior to” 1990, when the
international ban took effect. But how does someone “demonstrate” when, say, a
gift from his or her parents was imported? If the new burden of proof is not
satisfied, then the item is not marketable even though acquired and owned
legally—and until now
saleable legally. (Proposals for state bans also are circulating, including in
New York.) In short, the administration has enacted practical national
prohibition.
The
interstate restriction is uniquely perverse. Antique shows and the internet
have created a vibrant national market. Forcing dealers to divide their stock
and segment items which cannot be sold over state lines will be chaotic and
expensive. Moreover, not all states are created equal. Collectors and dealers
tend to be concentrated in major states. The administration rule prevents
people in low-population states, say Wyoming, from retiring as collectors.
Instead, they will be forced to die with their old ivory-keyed pianos and
ivory-handled knives.
Even
more problematic is the attempt by executive fiat to shift the burden of proof
for violating the law. I have a simple and cheap ivory chess set which I
purchased in England while my family lived there more than 40 years ago. Alas,
I have no proof of its age. How can I “demonstrate” its provenance in order to
avoid confiscation and prosecution? Shouldn’t I enjoy due process before the
government destroys the value of property I legally acquired?
The administration approach unfairly penalizes thousands of
collectors, dealers, and other Americans. They followed the law. They spent
money in reliance on the rules. And now the government has declared their
collections and inventories to be essentially worthless. Only those with money—and the most valuable ivory pieces—will
be able to legally comply. If you possess a $20,000 carving, you have an
incentive to jump through the administrative and financial hoops to get a CITES
certificate. If you possess $20,000 worth of average ivory
netsukes, most worth
perhaps $100 or $200, then your holdings are effectively valueless.
Tuesday, March 11, 2014
Some Things Have Changed in the Last 104 Years
Here are
some statistics for the Year 1910:
***********************************
The average life expectancy for men was 47 years.
Fuel for this car was sold in drug stores only.
Only 14 percent of the homes had a bathtub.
Only 8 percent of the homes had a telephone.
There were only 8,000 cars and only 144 miles of paved roads.
The maximum speed limit in most cities was 10 mph.
The tallest structure in the world was the Eiffel Tower !
The average US wage in 1910 was 22 cents per hour.
The average US worker made between $200 and $400 per year.
A competent accountant could expect to earn $2000 per year,
A dentist $2,500 per year, a veterinarian between $1,500 and $4,000 per year,
And a mechanical engineer about $5,000 per year.
More than 95 percent of all births took place at HOME.
Ninety percent of all Doctors had NO COLLEGE EDUCATION!
Instead, they attended so-called medical schools,
Many of which were condemned in the press AND the government as 'substandard.'
Sugar cost four cents a pound.
Eggs were fourteen cents a dozen.
Coffee was fifteen cents a pound.
Most women only washed their hair once a month, and used Borax or egg yolks for shampoo.
There was no such thing as under arm deodorant or tooth paste.
Canada passed a law that prohibited poor people from entering into their country for any reason.
The five leading causes of death were:
1. Pneumonia and influenza
2, Tuberculosis
3. Diarrhea
4. Heart disease
5. Stroke
The American flag had 45 stars.
The population of Las Vegas Nevada was only 30!
Crossword puzzles, canned beer, and iced tea hadn't been invented yet
There was no Mother's Day or Father's Day.
Two out of every 10 adults couldn't read or write and only 6 percent of all Americans had graduated from high school.
Eighteen percent of households had at least one full-time servant or domestic help.
There were about 230 reported murders in the ENTIRE U.S.A.!
(yes, people have changed) almost everyone owned a gun!
I am now going to forward this to someone else without typing it myself.
From there, it will be sent to others all over the WORLD...all in a matter of seconds!
Try to imagine what it may be like in another 100 years
***********************************
The average life expectancy for men was 47 years.
Fuel for this car was sold in drug stores only.
Only 14 percent of the homes had a bathtub.
Only 8 percent of the homes had a telephone.
There were only 8,000 cars and only 144 miles of paved roads.
The maximum speed limit in most cities was 10 mph.
The tallest structure in the world was the Eiffel Tower !
The average US wage in 1910 was 22 cents per hour.
The average US worker made between $200 and $400 per year.
A competent accountant could expect to earn $2000 per year,
A dentist $2,500 per year, a veterinarian between $1,500 and $4,000 per year,
And a mechanical engineer about $5,000 per year.
More than 95 percent of all births took place at HOME.
Ninety percent of all Doctors had NO COLLEGE EDUCATION!
Instead, they attended so-called medical schools,
Many of which were condemned in the press AND the government as 'substandard.'
Sugar cost four cents a pound.
Eggs were fourteen cents a dozen.
Coffee was fifteen cents a pound.
Most women only washed their hair once a month, and used Borax or egg yolks for shampoo.
There was no such thing as under arm deodorant or tooth paste.
Canada passed a law that prohibited poor people from entering into their country for any reason.
The five leading causes of death were:
1. Pneumonia and influenza
2, Tuberculosis
3. Diarrhea
4. Heart disease
5. Stroke
The American flag had 45 stars.
The population of Las Vegas Nevada was only 30!
Crossword puzzles, canned beer, and iced tea hadn't been invented yet
There was no Mother's Day or Father's Day.
Two out of every 10 adults couldn't read or write and only 6 percent of all Americans had graduated from high school.
Eighteen percent of households had at least one full-time servant or domestic help.
There were about 230 reported murders in the ENTIRE U.S.A.!
(yes, people have changed) almost everyone owned a gun!
I am now going to forward this to someone else without typing it myself.
From there, it will be sent to others all over the WORLD...all in a matter of seconds!
Try to imagine what it may be like in another 100 years
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