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http://www.regulations.gov/#!submitComment;D=FWS-HQ-IA-2013-0091-0001
2015-09-18
Points For Incorporation Into Individual Comments
The purpose of this document is to set forth the basic, high-level points that we encourage
individuals to incorporate into their own
individual comments. Of course, individuals should only make those comments they agree with
and are comfortable making. We strongly recommend 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. The purpose is to make sure
that all group members are echoing the same points so that FWS get a consistent high-level
message on its rule and our requested changes. Instructions on how to submit comments are set
forth on page 3.
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% 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. FWSs Proposed Rule Amounts to a Total Ban on the Trade in Ivory Antiques as a
Practical Matter, Destroying Billions of Dollars Worth of Value. FWSs 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% 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
2
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 Directors 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 FWSs 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.
2015-09-18
Points For Incorporation Into Individual Comments
The purpose of this document is to set forth the basic, high-level points that we encourage
individuals to incorporate into their own
individual comments. Of course, individuals should only make those comments they agree with
and are comfortable making. We strongly recommend 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. The purpose is to make sure
that all group members are echoing the same points so that FWS get a consistent high-level
message on its rule and our requested changes. Instructions on how to submit comments are set
forth on page 3.
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% 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. FWSs Proposed Rule Amounts to a Total Ban on the Trade in Ivory Antiques as a
Practical Matter, Destroying Billions of Dollars Worth of Value. FWSs 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% 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
2
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 Directors 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 FWSs 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.
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