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Antiques

March 7, 2014

VIA EMAIL AND FACSIMILE

AADLA - www.aadla.org

NAADAA - www.naadaa.org

Daniel M. Ashe?Director, U.S. Fish and Wildlife Service 1849 C Street NW, Room 3331 Washington, DC 20240?Email: This email address is being protected from spambots. You need JavaScript enabled to view it.?Fax: 202 208-6965

Re: DIRECTOR’S ORDER NO. 210

Dear Director Ashe:

We represent the Art and Antique Dealers League of America (the “League”) and the National Antique and Art Dealers Association of America (“NAADAA”), two trade associations that advocate for the interests of the small businesses that deal in art objects of cultural significance.1

The League and NAADAA write to express their concern about your recent Order No.210 (the “Order”) that sets policies and procedure for U.S. Fish and Wildlife Service (the “Service”) with regard to the import, export and sale of elephant ivory and parts of other species listed under the Endangered Species Act of 1973 (16 U.S.C. 1531-1544) (the “ESA” or the “Act”). As further described below, the League and NAADAA respectfully request that the Service:

· address the imbalance and lack of clarity created by the Order with regard to certain documentation requirements and rules under the ESA, especially as they relate to American-made objects and pre-1982 imports; and,

· consider the creation of an expert advisory panel to review ESA permit applications, with the twin goals of creating a transparent, licit market in ivory objects that are vetted and certified as genuine antiques (i.e., 100 years old), and discouraging the traffic in uncertified objects that lack permits. ?1 The League has 93 member firms in United States. More about the League may be found on the internet at http://www.artantiquedealersleague.com. The NAADAA has 39 members across the United States. More about the NAADAA may be found on the internet at http://www.naadaa.org

Background.

The plight of the elephant is of great concern to our members, and we deplore the lack of focus this issue has received in the past. While we understand that some importers have used the ESA’s antique exception (16 U.S.C. 1539 (h)) “to ‘cover’ trafficking in newly poached ivory,” our members are professional art dealers who import, export and sell art objects of cultural significance that are certifiably antiques. Our associations pride themselves in carefully choosing members who have the academic credentials and practical experience in the art market to ensure they only deal in pre-Act, antique material. Our members routinely work with museums and the Internal Revenue Service to evaluate objects containing elephant ivory and other ESA-listed species.

Elephant ivory is too important to our artistic heritage to have objects containing that ivory to be rendered worthless. Elephant ivory has been venerated for thousands of years by mankind in virtually every culture, and has been used in creating extraordinary works of art. It has been used in every area of the arts– ground in oil paints, inlaid in furniture, used as heat insulators in teapots and coffee pots, and used as a support for miniature portraits. The list is enormous. To cast a pall on this vast artistic heritage hurts museums, art collectors and the public – not the ivory smugglers.

Concerns Raised by the Order.?With regard to the Order, we have the following specific concerns about certain

information in the Questions and Answers (“Q&A”) and in the Appendix (“Appendix”):

1- The Order casts a cloud over pre-1982 imports and US made objects. The Q&A states that “[u]nder 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’.” Under the question “[w]hat articles do not qualify for the antique exception under the ESA?,” the following articles are described:

· Articles that were imported prior to the creation of designated ports for ESA antiques (September 22, 1982); and

· Articles that were created in the United States and never imported.?It is unclear what the phrase "do not qualify for the antique exemption" means in ?these contexts. ?The Appendix cites the antique exception in 16 U.S.C. 1539(h), including the requirement that the object was “entered at a port designated for the import of ESA antiques.” Read strictly, 1539(h) appears to block pre-1982 imports and objects created in the United States. This interpretation is not supported by the legislative history.

2. With regard to objects imported prior to 1982, the port designation scheme was not in place at the time of their importation; it is thus impossible for an object imported prior to 1982 to meet this requirement. We know of no provision in the legislative history of the ESA that supports the position that the port designation requirement was meant to apply to objects imported prior to 1982, the date the port scheme was established. Because the balance of Section 1539(h) only addresses imports, it seems clear that the port designation requirement was meant only to apply to prospective imports. The same analysis applies to objects manufactured in the United States. We know of no provision in the legislative history of the ESA indicating that objects created in the United States that contain ESA-listed species cannot be sold in interstate commerce or cannot be exported because they were not imported through a designated port.

  • 2- It is unfair to permit freshly-killed “sport-hunted trophies” while banning certified antiques. Included among the elephant ivory items that still may be imported is “African elephant ivory as part of a personal sport-hunted trophy.” We question the policy decision to allow recently killed elephant heads containing ivory, used as “trophies,” to be allowed into the country while denying entry to bona-fide antiques that are more than 100 years old. This seems to contradict the intent behind the Order, which is to save elephants by eliminating the market for fresh ivory. Banning certified antiques while permitting freshly killed sports-hunted trophies appears to reverse the priorities of the Order.
  • 3- Customary“antiqueport”exceptionproceduresaremissing.Therequirementsof the “antique” exemption include that the object “is being or was imported through an endangered species ‘antique port.’” The Service’s regulations in 50 CFR 14.20 have long recognized port exception procedures, but this is nowhere mentioned in the Appendix or Q&A.
  • 4- Absence of export provisions for traveling exhibitions. Worked African elephant ivory may be imported as part of a traveling exhibition, subject to certain requirement listed in the Q&A. However, there are no reciprocal requirements for the export of traveling exhibitions. In fact, the general export requirements state more rigorous standard for exports, such as proof of legal import and satisfaction of the “antique” exemption requirements, although these seem not to apply initially due to “a special rule that has not yet been revoked.” However, once this special rule is revoked there will be a disparity between the criteria used for importing and exporting traveling exhibitions. ?Proposal to Create an Expert Panel to Certify Vetted Antique Ivory for ESA Permits. ?We think there are better solutions to the problem. In particular, we propose to create an art advisory panel to the Service (the “Advisory Panel”) to review ESA permit applications, with the twin goals of creating a transparent, licit market in ivory objects

      

3 that are vetted and certified as genuine antiques (i.e., 100 years old), and discouraging the traffic in uncertified objects that lack a permits.

In essence, 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 Advisory Panel would be similar to the panel that exists at the Internal Revenue Service.2

· The Advisory Panel would be comprised of 12 art experts with expertise in different types of works of art, such as American, English, Continental European, Russian, Chinese, Japanese, etc. Regional panels could be organized in each of four cities (New York, Washington D.C., Chicago and Los Angeles). Each regional panel would meet once a month to review all ESA permit applications filed in their region to import, export and sell ESA- listed species.

· The permit application would require the applicant to provide all known information about each object being imported, exported or sold. The Advisory Panel would review the application and certify the antique status of the object. The Advisory Panel could require the applicant to deliver the object to the Panel for first-hand inspection (in the case of imports, the object would be sent to the Panel before being released into commerce).

· The applicant would be required to pay an ESA permit fee to cover the cost of operating the Advisory Panels.

· Once the Panel certifies an object as an antique, the Service would issue an ESA permit and record the permit in a public registry, so that every object containing ESA-listed species that is imported, exported or sold in interstate commerce is a matter of public record. The public listing would include a photograph of the object and would be used in the future to verify the legal import, export or sale of an object. ?The 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 ?2 Created in 1968, the Art Advisory Panel of the Commissioner of Internal Revenue provides advice and makes recommendations to the Art Appraisal Services unit in the Office of Appeals for the Internal Revenue Service (IRS). The 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.

4 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 respectfully request that the Service review the points summarized above and take any corrective action that be deemed necessary before the Order is enforced at the ports. Our proposal to create an art advisory panel to the Service should be adopted to assist the Service in assessing a claim that an object being imported, exported or sold is over 100 years old.

These issues that are very important to the interests of the small businesses that deal in art objects of cultural significance and the collectors whom they serve. We thank you in advance for your consideration. Please feel free to contact either of us with any questions or comments.

Sincerely,

Clinton Howell

Clinton Howell, President? - Art and Antique Dealers League of America

James McConnaughy

James McConnaughy, President? - National Art and Antique Dealers Association of America

Cc: Craig Hoover?Chief, Wildlife Trade and Conservation Branch Division of Management Authority International Affairs?U.S. Fish and Wildlife Service?Via email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Timothy J. Van Norman, Chief Branch of Permits?Division of Management Authority U.S. Fish and Wildlife Service

Via email: This email address is being protected from spambots. You need JavaScript enabled to view it.?5

- See more at: http://www.art-antiques-design.net/featureDetails.cfm?featureID=610#sthash.oeofrADR.dpuf

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