Sunday, May 18, 2014

Detroit Update Spring 2014

The Detroit News is doing a terrific job of keeping us all updated on the Bankruptcy of Detroit and the date of the Detroit Institute of Art. I have also published below some experts of other media that are covering the story


The Detroit News

 

  • 10:59 PM, May. 14, 2014



  • 11:33 PM, May. 13, 2014


  • Wayne County
  • By Daniel Howes and David Shepardson The Detroit News
    GM, Ford, Chrysler preparing to give DIA large donations to aid bankruptcy exit
    Plans by Detroit's automakers to donate roughly $25 million to the Detroit Institute of Arts are part of the museum's $100 million contribution to a 'grand bargain' intended to help the city exit bankruptcy, protect city-owned art and bolster public pensions.

  • 11:22 PM, May. 13, 2014


  • Wayne County


  • 10:22 AM, May. 13, 2014


  • Wayne County

  • By Chad Livengood The Detroit News
    DIA tells bankruptcy judge: Inspecting art puts it at risk
    The Detroit Institute of Arts says a request by city creditors to let interested art buyers pull paintings off the museum's wall for a rushed 'yard-sale-like' bankruptcy appraisal just 'invites disaster.'

  • 11:38 PM, May. 12, 2014


  • Wayne County


  • 10:38 PM, May. 8, 2014



  • 1:22 PM, May. 8, 2014



  • 6:51 PM, May. 5, 2014



  • 7:15 PM, May. 2, 2014



  • 10:36 PM, Apr. 30, 2014


  • By Chad Livengood Detroit News Lansing Bureau
    Plan floats Detroit oversight panel after bankruptcy
    Lansing Gov. Rick Snyder said today he thinks lawmakers can avoid amending Michigan's controversial emergency manager law as part of a legislative package to make a $350 million contribution to a Detroit bankruptcy settlement.

  • 2:03 PM, Apr. 30, 2014



  • 10:31 PM, Apr. 29, 2014


  • Wayne County
  • By Chad Livengood Detroit News Lansing Bureau
    Bills for state aid for Detroit pensions to be introduced next week
    A 10-bill package to provide Detroit's pensions a $350 million infusion of state cash could be introduced next week, as Emergency Manager Kevyn Orr works to convince lawmakers to contribute to a settlement of the city's bankruptcy.

  • 11:38 PM, Apr. 28, 2014



  • 3:41 PM, Apr. 24, 2014



  • 1:18 PM, Apr. 22, 2014



  • 11:46 PM, Apr. 18, 2014



 From The Detroit News: 


 
Judge denies creditors' request to pull DIA art off walls
•Robert Snell
•The Detroit News
Bond insurers who have pushed Detroit to sell the art collection and spend the money paying creditors failed to prove they needed to remove art from the walls or storage, the judge said. (Daniel Mears / The Detroit News)
Detroit — The city’s bankruptcy judge refused Thursday to let creditors pull art off the wall at the Detroit Institute of Arts for appraisal and inspection purposes. Buy a ticket and take a tour instead, U.S. Bankruptcy Judge Steven Rhodes told bond insurers. Bond insurers who have pushed Detroit to sell the art collection and spend the money paying creditors failed to prove they needed to remove art from the walls or storage ,  the judge said.
“The risk to the art that could come from granting this relief…is a substantial risk and one not to be undertaken lightly…,” the judge said.
The ruling followed a nearly three-hour hearing in federal court. A group of creditors, led by Financial Guaranty Insurance Company and Syncora Guarantee Inc., had asked Rhodes to give     interested buyers a chance to make their own assessment of the vast art collection’s worth. The city has refused to sell the art, arguing the world-famous collection would play a key role in the city’s rebirth. FGIC and other creditors are trying to prove the DIA’s collection is worth more than an $816 million, 20-year pledge being offered by 12 philanthropic foundations, the state of Michigan and the DIA in the so-called “grand bargain” to swap the art for aid to 32,000 city pensioners. The DIA filed an objection in bankruptcy court late Monday night, telling Rhodes that a physical inspection of 3,000 works of art by outside parties puts the collection at “significant risk ” and creates an “unwarranted additional burden” for the museum.
DIA lawyer Arthur O’Reilly said the request to pull art off the walls and valuate the pieces is risky. “It absolutely creates the potential for harm,” he told the judge.
Some pieces are so large, a team of workers would need to use hydraulic lifts and climb scaffolds. “All of that movement creates a potential for risk,” O’Reilly said. “The very best way to keep art safe is not to touch it. Leave it in place.” Rhodes later told FGIC bankruptcy attorney Alfredo Perez his client could simply review the art collection by buying a ticket to the DIA.
Perez said his firm would need to arrange for access to art held in storage. FGIC, which faces losses of up to $1.1 billion in Detroit’s bankruptcy, made a global solicitation of bids earlier seeking investors interested in buying city-owned art or loaning the city money against the massive collection. The preliminary bids, disclosed in an April 9 bankruptcy filing and dubbed “indications of interest,” ranged from at least $895 million to buy 116 unnamed artworks to a $2 billion loan that would require the entire 66,000-piece collection to be held as collateral. The $816 million plan to rescue the city’s art collection and soften pension cuts is not such a grand bargain, a bond insurer said in court Thursday. “It’s more grandiose than grand,” Syncora Guarantee Inc. lawyer Marc Kieselstein told the judge. Syncora has pushed for the art collection to be sold to satisfy creditors, who fare a worse payout than retirees, the DIA and pension funds, all of which would benefit under the $816 million “grand bargain.” “We have our nose pressed up against the glass,” Kieselstein said. “Are you aware of a single case that holds municipalities in a Chapter 9 (bankruptcy) that has an unconditional right, an unconditional obligation, to minimize creditor losses?” the judge countered. “We think…that’s exactly what a city has to do,” the lawyer said.
“Why should creditors fare better in bankruptcy (compared to outside of bankruptcy court)?” the judge asked. “The ability to get a judgment,” the lawyer said. “A judgment’s a piece of paper,” Rhodes said. “What’s that get you?”
 
 
By David Skeel, Published: May 9 Washington Post
David Skeel is a professor of bankruptcy law at the University of Pennsylvania Law School.
The $816 million art-for-pensions deal that is designed to preserve the Detroit Institute of Arts collection is fascinating, imaginative and clever. But it’s almost certainly illegal.
 
And I’ll show you why.
 
Were it legal, the deal would help solve two very big problems. The first is Detroit’s radically underfunded pensions, which are at least $3.5 billion in the hole, by the reckoning of Detroit Emergency Manager Kevyn Orr . Simple economics says that Detroit needs to slash these obligations. But the pensions are not lavish, and thousands of retired Detroiters depend on the pensions for their daily bread.
On the other side of the tracks is the Detroit Institute of Arts. Unlike most cities, whose art museums belong to separate entities, Detroit has owned its art museum since 1919, when the city was prospering. This means that it could put Bruegel’s “The Wedding Dance” or Matisse’s “The Window” on the auction block to pay creditors. The art world has been scheming to keep the art in Detroit, but creditors have insisted that they are entitled to its value. Added to this are the class — and, unavoidably, racial — implications of lavishing so much attention on art as ordinary Detroiters struggle.
Out of nowhere came the art-for-pensions scheme. The deal calls for Detroit to “sell” its art to a newly created trust that is required to keep the art in the city, using roughly $370 million raised from the Ford, Kresge, Knight and other foundations, $350 million from the state of Michigan (if the Republican legislature agrees) and the institute’s own funds. Not only would the new entity keep the art in Detroit but also the entire $816 million would be used to pay Detroit’s pensioners. The art world and Detroit’s pensioners both win. It’s almost like the deus ex machina solution to a Greek play.
The only problem is the bankruptcy law. A city’s treatment of its creditors in bankruptcy must be “in the best interests of creditors” and cannot “discriminate unfairly.” Best interests means that creditors must get more in bankruptcy than they would outside of bankruptcy; and no unfair discrimination means that Detroit can’t give a much higher recovery to one group of general creditors than to another.
The art-for-pensions deal runs roughshod over both requirements. Because the art would be used to pay only one group of creditors — the pension recipients — the excluded creditors may be worse off in bankruptcy than if Detroit had never filed. And Detroit’s current debt adjustment plan would include this influx of cash in a package that gives pensioners at least 95 percent of what they are owed while giving bondholders less than 20 percent.
 
In addition to these legal issues, the scheme has put members of the judiciary in an increasingly unjudicial role. The bankruptcy judge has resisted creditors’ requests to investigate the art to determine its value so they could explore alternative arrangements. The chief mediator in the case, a federal judge, has met with representatives of the foundations, lobbying them for money for the deal. Both judges are highly respected, but some worry whether the rule of law is being respected.
If Michigan wishes to help Detroit’s pensioners, it can simply pay them $350 million (or any other amount) outside of the bankruptcy process. Rhode Island did just this after Central Falls filed for bankruptcy in 2011. Detroit also can consider other ways to tap the value of its art while keeping the collection in the city. It can even arrange to give its pensioners somewhat greater recovery than other creditors, as long as the payouts are not wildly disproportionate.
 
What it can’t do is funnel the proceeds of a valuable asset to a single group of general creditors while excluding everyone else. U.S. bankruptcy law is designed to prevent precisely this kind of abuse.
Read more on this issue:
 
The Post’s View: Paying the price for Detroit’s fiscal irresponsibility
Robert J. Samuelson: Bankrupt Detroit needs to reinvent itself
The Post’s View: Detroit’s lesson for unions: Ask for what’s fair and sustainable
 
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FWS Sees Only Nails For Their Hammer

I would be delighted to report that the US Government works for us and their activities do reflect the will of the people. Politics should not be important in this debate. If you are jumping for joy because some regulation is skewering a conservative, then clearly you are not smart enough to understand the idiocy of  letting government bypass for any agenda constitutional checks and balances. If you are the one getting skewered, the process of celebrating a political victory loses some of its luster . The Obama Administration's stated  mission (see the update in this Newsletter issue) is again bypassing the legislative process by effectively moving by regulation in the direction of a complete ban on the sale of all ivory. The President might not be aware amid the howls of his environmental left that the art and antique world is primarily comprised of liberals - the very folks he is preparing to skewer. The Huffington Post is not generally considered a conservative media source giving credence that this issue crosses party lines. On April 24, 2014 they posted the following.

Obama Administration Treats Antique Collectors and Dealers as Criminals: New Ivory Rules Also Put Elephants at Increased Risk

Posted: Updated:     
 
"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 "

The New York Times, Washington Post, Forbes and many other publications have come out with  similar statements.

 Is an ivory ban a life and death issue? No, of course not; however, it is symptomatic of a government that  proves daily it is out of touch with the promises they made to protect and defend the constitution. Think about this.. it really transcends politics and whether you wave a red or blue flag. The Congress may at the bidding of the people legislatively pass a ban. That's our system which then gives us the prerogative of no longer voting for those that we feel are not representing us.

This government is now moving towards regulations that will ultimately ban the sale of all mammal ivory. When I say all,  I mean objects that could be anything from the mammoth ivory lion man sculpture dated to over 40,000 years old to the tourist bangle carved from illegal ivory in Kenya last year. Can we even remotely consider that these objects are equal in an ivory ban? As we see below the government's answer is yes.



So what the Fish and Wildlife Service (FWS)  has done at the direction of the Obama Administration is to appear like they are treating contemporary and ancient ivory fairly by expanding  the definition for "antique" ivory. In the past customs regarded anything over one hundred years old to be an antique. The definition has changed and now you have a few more hoops to jump through.

  • Is 100 years or older;
  • Is composed in whole or in part of an ESA-listed species;
  • Has not been repaired or modified with any such species on or after December 28, 1973; and
  • Is being or was imported through an endangered species antique port.
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.

What are the chances that the 16th century Benin ivory mask was imported through one of these ports and that there still is documentation to prove this fact. Since the port was unknown at the time to be a designated port and that most owners don't save this sort of documentation through generations.. both of these objects are nails.. there are no differences to the U.S. Government. I should note that McCullough's group has proposed changes to the regulations to address this discrepancy.

Conservation groups around the world are calling for a complete ban on all sales of  mammal ivory objects; and again there is no distinction made between  the tourist jewelry illustrated above and the 15th century Portuguese salt cellar from Sierra Leone..

In the United States the constitution does afford some protection to its citizens and the property they own. Undoubtedly, these FWS regulations will ultimately face the scrutiny of the Supreme Court. It will be pointed out that citizens have legally acquired objects at in some cases significant costs. By making it impossible for an object to be considered an antique FWS has essentially made the object worthless in the marketplace. Again all objects are nails and will ultimately be treated with the hammer.

Which is a perfect segue to the government's ultimate solution to dealing with banned ivory. Yes it is literally solved with a hammer. China, France, and the US. have called these events "ivory crush"



" 15 WWF Success Stories of 2013 | Stories | WWFworldwildlife.org 
Six tons of illegal elephant ivory tusks, trinkets and souvenirs were crushed to gravel at an event hosted by the US Fish and Wildlife Service in Denver."
 
 It would be interesting to see if FWS had any experts evaluate the six tons of carved ivory to ensure that they there was not  an early 19th century Kongo ivory finial in the group. I would bet the piece to the right looks pretty similar to the pieces that FWS workers crushed in Denver. If you really don't know the difference they all do look like nails.

In China the recent ivory crush which they say will take a year is covered by CNN.
Listen to this segment.. the environmentalist dodges the question about the success of attacking the problem at the source by lamenting the deaths of park rangers. Neither the interviewer or the environmentalist even address the issue of antique ivory.
http://www.youtube.com/watch?v=4gyNMC-3ZE8

And the BBC also takes the same line ignoring the issue of antique ivory suggesting that all ivory objects should be treated equally and that's by being crushed and burned.


By the way righteous indignation at the slaughter of African elephants can still be tempered with a little cash and a good lobbyist. Yes if you are a hunter you can still go to Africa and shoot an elephant and bring home the ivory. When I asked a FWS official to explain this apparent contradiction, it was stated that the killings were done in the name of conservation. Now if you are concerned about the depleted numbers of elephants how does reducing them further contribute to their numbers?

What about the owners of antique ivory? The media has pointed out that honest citizens that are buyers and sellers of antiques are now going to be classified as criminals. So is there any difference in individuals that have followed the rules all their lives and those that have broken many rules and are NOW slaughtering elephants for their ivory. Really do we treat both groups equally?. There was a time when individuals that loved arts and antiques were considered to be enlightened. But apparently now the enlightened are the minority power brokers that have an agenda to impose on the majority
tax payers.

Does this make any sense at all? And do you really think it makes any difference whether you are politically to the right or left. This issue is so much bigger than ivory. It is really about you, your family, and future generations and the fundamental concept that government works for you..

Please also follow the updates on this issue  on
http://committeeforculturalpolicy.org/antique-dealers-propose-reform-of-new-ivory-regulations/
 
http://mcculloughllc.wordpress.com/
 
There are links and updates  from Fish and Wildlife and Cites on
 
www.arttrak.blogspot.com



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Wednesday, May 14, 2014

Update - Ivory - Fish andf Wildlife

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

Posted on March 25, 2014 by

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

Art Dealer Groups Propose Solution to Ivory Ban

Posted on March 7, 2014 by

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 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.


General Q&As 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; and
Such 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.
 
 
Antique Dealers
 
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.
 
 Hunters
 
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).
 
 
Ivory Carvers
 
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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