The US Fish and Wildlife Service (FWS) is allowing public comments on its proposed rules concerning trade in ivory until midnight on Monday, September 28. Asian arts expert and iGavel founder Lark Mason, working in concert with major art and antiques organizations, has developed a series of talking points that the Ivory Antiques Preservation Society is encouraging be incorporated into one’s individual comments. Of course, individuals should only make those comments they agree with and are comfortable making. It is strongly recommended that any individuals submitting comments do not simply copy and paste these comments but rather put them in their own words, and add any individual points or unique perspectives that they might have.
1. The Record Does Not Support that the Proposed Restrictions on Sales in and Imports to the US Will Have Any Substantial Effect on Elephant Poaching. Sales and imports to the US do not contribute materially to elephant poaching. According to the March 2013 CITES report on which FWS relies, the US accounts for, at most, less than .2 percent of the illegal ivory trade, and the report concludes “there is no evidence of large-scale ivory movements within this group [of three countries, which includes the United States], indicating that none of these countries currently lie along ivory trade routes used by organized criminal syndicates.” (emphasis added). Instead, the illegal trafficking largely takes place in Asia and African countries – the report found eight countries, in Asia and Africa, to be the “greatest concern in the illicit trade in ivory.”
2. FWS’s Proposed Rule Amounts to a Total Ban on the Trade in Ivory Antiques as a Practical Matter, Destroying Billions of Dollars’ Worth of Value. FWS’s rule would put in place what FWS has referred to as a “high bar” in establishing that the antique requirement is satisfied. DO-210, Appendix 1. Most problematic is the requirement that, for items imported after 1982, information establishing that they were imported through an “antique port” be provided, even though Customs rules only required such records to be retained for five years and there would have been no reason to retain such record. Because of this high bar, FWS has explained that the rule would result in “a near total ban on the domestic commercial trade of African elephant ivory.” FWS Press Release (July 25, 2015).1 Indeed, because of this virtually total ban, the vast majority – possibly up to 100 percent – of the total value of ivory antiques will be destroyed, amounting to an economic harm in at least the hundreds of millions, if not billions, of dollars.
3. A Declaration from a Qualified Art or Antique Expert that an Object Is Over 100 Years Old and the Ivory Has Not Been Repaired Recently Should Be a Safe Harbor Allowing Domestic Sales, Export, and Import. The antiques exemption is critical to the Endangered Species Act and Congressionally mandated. Museums, auction houses, 1 Available at http://www.fws.gov/news/ShowNews.cfm?ID=C5979B33-5056-AF00-5B8634931E12B0C7 and others all need certainty that a sale of an antique will not be challenged by FWS in order for their ivory antiques businesses to function. Accordingly, FWS should establish a safe harbor where a declaration from a qualified art or antiques expert is sufficient to establish the applicability of the antiques exception. FWS could consider limiting such a declaration to a list of FWS-certified experts or to experts certified by an independent organization, to provide an increased incentive to such experts to only certify legitimate antiques, because they could lose their certification (among other penalties) if they falsify a declaration or are otherwise unreliable. FWS should bear in mind that many antique transactions are for items of relatively small value (less than $2,000), so requiring onerous documentation would be unduly burdensome.
4. The Provisions of DO-210 Are Intertwined With to This Rulemaking and Must Be Open to Notice and Comment. The proposed rule is intertwined with Director’s Order 210, which is cited over two dozen times in the preamble. The two rules address the same subject – African elephant ivory restrictions – and work together to impose major constraints, including on the sale of ivory antiques. Moreover, DO-210 itself imposed a number of substantive requirements that should have been subject to public notice and comment.
5. Rules Banning the Sale and Import of Antique Ivory Are Beyond FWS’s Authority. The Endangered Species Act contains a Congressionally-mandated exemption for antiques. Changing long-standing interpretations exempting antiques and thereby destroying a substantial portion of the value of existing collections is so draconian that it would require a clear grant of authority from Congress. FWS cannot destroy the exemption by retroactively requiring that owners prove their antiques entered through an “antique port” if the item had been imported after 1983, or that the item was imported before 1983.
Instructions on how to submit comments:
As a reminder, comments are currently due by 11:59 PM Eastern Monday, September 28, 2015.
There may be an extension granted, but those interested in the rule should proceed on the
assumption that one will not be granted (unless and until an extension is confirmed).
1. Navigate to www.regulations.gov
2. In the search bar, input FWS-HQ-IA-2013-0091
3. You should see the following proposed rule:
4. Click the “comment now button.”
5. Click the “choose files button” and select your comment document (i.e., a Word or PDF
document) to upload. In the “comment” box on the webpage, you can simply type “see
the attached document” or words to that effect; you do not need to reproduce your
comment document in the comment box.
6. Provide your first and last name or, if you choose to remain anonymous, type
“anonymous” in both fields.
7. Click continue.
8. View the preview. If it looks good and indicates that you successfully uploaded the
relevant comment file, click the box and click “submit comments.”
9. Save a copy of your submitted comments and your confirmation that the comments were
received for your records.
