Rick Bowles
Absent Comrade
Below I've posted the final Elephant ivory rules and analysis that has been forwarded to me by Rob Mitchell an attorney who has been at the forefront of this fight since it's inception. You should read the entire letter including the links but for our purposes there seems to be some concessions that will allow us to buy and sell our ivory handled guns and knives.
The words “or integral” were added to the de minimis exception criterion in paragraph (e)(3) that describes ivory being a fixed component of a larger manufactured or handcrafted item. This change clarifies that items like gun grips, knife handles, or ivory nuts that could be removed from an item and meet all other criteria of the de minimis exception are covered by the exception. However, the rule would not allow gun grips, knife handles, ivory nuts or other components made from ivory to be sold or traded independently.
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Friends,
As most of you are already aware, the U.S. Fish and Wildlife Service published its final rule concerning the Special Rule on African Elephants on June 6, 2016. The rule goes into effect July 6.
The Final Rule is almost the same as the Proposed Rule from last year. Key highlights include:
•The Rule reaffirmed Director’s Order 210 which banned international commercial import of antique ivory;
•The Rule explicitly shifts the burden for the trade of antique ivory items on to the seller to prove that it is more than one hundred years old, has not been repaired or restored with ivory after December 27, 1973, and for some items, were imported through an endangered species “antique port”;
•The rule makes it illegal to trade ivory in interstate commerce if it is less than one hundred years old. There is a 200 gram “de minimis” exception to this rule for “Pre-Convention” ivory that is further narrowed by six other criteria. There are also some special provisions for musical instruments.
In the 30 pages of discussion that preceded the actual rule, FWS opened some doors while closing others.
The open doors include:
•FWS reiterated that the rules for antiques and the de minimis exception are entirely different matters. There is no weight limit or any requirement that ivory be incorporated with another object if it is antique (100 years old or more).
•While not adopting a licensing or registration scheme, FWS discussed the value of experts and professional appraisers in establishing the age or provenance of an item. Expert opinions are useful, but not determinative. Any expert needs to be prepared to document the basis behind an opinion.
•The words “or integral” were added to the de minimis exception criterion in paragraph (e)(3) that describes ivory being a fixed component of a larger manufactured or handcrafted item. This change clarifies that items like gun grips, knife handles, or ivory nuts that could be removed from an item and meet all other criteria of the de minimis exception are covered by the exception. However, the rule would not allow gun grips, knife handles, ivory nuts or other components made from ivory to be sold or traded independently.
•In discussing what the service means when they say “primary” or “primarily” when talking about the amount to which ivory is considered in the value of an item that could qualify for the de minimis exception, FWS clarified that they mean “more than 50 percent.” So if an item is less than half ivory and qualifies under all of the other de minimis criteria, it could be legal to sell in interstate trade. However, just putting an object on a big wooden base or surrounding it with a big frame is not likely to bring the ivory item within this exception.
The closed doors include:
•FWS emphasized that while the Endangered Species Act antiques exception allows imports of antiques, their interpretation of the African Elephant Conservation Act and the moratorium they placed on the trade of ivory does not. This is their foundation for DO 210’s continued international trade ban of ivory antiques.
•FWS discusses that it considered petitions from people who owned items like organs that have two keyboards, bag pipers and chess set collectors where the 200 gram de minimis exception is inadequate to cover their items. The Service rejected those petitions, indicating that all of the de minimis exception’s criteria will be strictly enforced together, and that failure of one criterion means the exception does not apply. They used chess sets to clarify that it is not the weight of individual pieces, but the weight of the complete set that would disqualify these items from this exception.
•FWS refused to create any “safe harbors” or binding criteria that a seller could rely upon to be certain an item qualifies as an antique or under the de minimis rules. Instead, it is up to the discretion of enforcement personnel whether proof or documentation in any given case is sufficient to prove whether an item is an antique or meets the de minimis exception. The Service said that more guidance would be forthcoming.
•FWS banned the interstate trade of sport hunted trophies even if they were brought into this country before CITES was enacted
The simplest discussion of the rule along with a table describing enforcement and all of the criteria for exceptions can be found at http://www.fws.gov/international/pdf/questions-and-answers-african-elephant-4d-final-rule.pdf. As stated in the FWS press release that accompanied publication of the rule, their goal is a “Near-Total Elephant Ivory Ban.”
FWS continued to engage in double-speak in the final rule. Although they proclaimed the rule creates a near total ban on the trade of elephant ivory, they claimed the economic impact on people and businesses would be minimal. FWS also emphasized that their rule only applied to interstate commerce and does not limit people to trade ivory within a state.
So where do we go from here?
First, we need to continue the fight against state ivory bans. Among the good things to come out of this rule is the fact that our opposition forced FWS to take a year or more to address the multitude of flaws with this policy, and they had to create exemptions that give ivory owners a little breathing space to survive. We need to fiercely protect that space, and wherever possible, prevent states from enacting legislation that will further muddy the waters. So far we have prevented ivory bans in all states except New Jersey, New York, California, Washington and Hawaii. That’s a pretty good record when you consider about half of the country had pending legislation in one form or another over the past two years. Ironically, the federal ban gives us another tool to stop states from wasting resources on a state-level ban.
Second, we need to continue to engage politicians. An administration that truly cares about private property rights and genuine wildlife conservation can reverse this rule. NGOs will continue to fundraise off of crises they create and then divert some of those proceeds to politicians in order to keep their revenue streams flowing. This ivory ban is corrupt in every sense of the word. If the people profiting from this go unchallenged, then they will continue to exploit and expand upon the falsehoods and misconceptions that enable their behavior.
Third, there is litigation. The agency has taken final action, and the matter is unquestionably ripe. NGOs and the federal government have dared people to sue them, knowing that litigation will be a long and expensive process. The Ivory Education Institute took up that challenge with California’s ivory ban, and that process is playing out. Now it remains to be seen whether people will organize to fund a pre-emptive attack on the regulation, or whether individuals who are singled out for prosecution will bear the burden of defending themselves.
The words “or integral” were added to the de minimis exception criterion in paragraph (e)(3) that describes ivory being a fixed component of a larger manufactured or handcrafted item. This change clarifies that items like gun grips, knife handles, or ivory nuts that could be removed from an item and meet all other criteria of the de minimis exception are covered by the exception. However, the rule would not allow gun grips, knife handles, ivory nuts or other components made from ivory to be sold or traded independently.
================================================== ==================
Friends,
As most of you are already aware, the U.S. Fish and Wildlife Service published its final rule concerning the Special Rule on African Elephants on June 6, 2016. The rule goes into effect July 6.
The Final Rule is almost the same as the Proposed Rule from last year. Key highlights include:
•The Rule reaffirmed Director’s Order 210 which banned international commercial import of antique ivory;
•The Rule explicitly shifts the burden for the trade of antique ivory items on to the seller to prove that it is more than one hundred years old, has not been repaired or restored with ivory after December 27, 1973, and for some items, were imported through an endangered species “antique port”;
•The rule makes it illegal to trade ivory in interstate commerce if it is less than one hundred years old. There is a 200 gram “de minimis” exception to this rule for “Pre-Convention” ivory that is further narrowed by six other criteria. There are also some special provisions for musical instruments.
In the 30 pages of discussion that preceded the actual rule, FWS opened some doors while closing others.
The open doors include:
•FWS reiterated that the rules for antiques and the de minimis exception are entirely different matters. There is no weight limit or any requirement that ivory be incorporated with another object if it is antique (100 years old or more).
•While not adopting a licensing or registration scheme, FWS discussed the value of experts and professional appraisers in establishing the age or provenance of an item. Expert opinions are useful, but not determinative. Any expert needs to be prepared to document the basis behind an opinion.
•The words “or integral” were added to the de minimis exception criterion in paragraph (e)(3) that describes ivory being a fixed component of a larger manufactured or handcrafted item. This change clarifies that items like gun grips, knife handles, or ivory nuts that could be removed from an item and meet all other criteria of the de minimis exception are covered by the exception. However, the rule would not allow gun grips, knife handles, ivory nuts or other components made from ivory to be sold or traded independently.
•In discussing what the service means when they say “primary” or “primarily” when talking about the amount to which ivory is considered in the value of an item that could qualify for the de minimis exception, FWS clarified that they mean “more than 50 percent.” So if an item is less than half ivory and qualifies under all of the other de minimis criteria, it could be legal to sell in interstate trade. However, just putting an object on a big wooden base or surrounding it with a big frame is not likely to bring the ivory item within this exception.
The closed doors include:
•FWS emphasized that while the Endangered Species Act antiques exception allows imports of antiques, their interpretation of the African Elephant Conservation Act and the moratorium they placed on the trade of ivory does not. This is their foundation for DO 210’s continued international trade ban of ivory antiques.
•FWS discusses that it considered petitions from people who owned items like organs that have two keyboards, bag pipers and chess set collectors where the 200 gram de minimis exception is inadequate to cover their items. The Service rejected those petitions, indicating that all of the de minimis exception’s criteria will be strictly enforced together, and that failure of one criterion means the exception does not apply. They used chess sets to clarify that it is not the weight of individual pieces, but the weight of the complete set that would disqualify these items from this exception.
•FWS refused to create any “safe harbors” or binding criteria that a seller could rely upon to be certain an item qualifies as an antique or under the de minimis rules. Instead, it is up to the discretion of enforcement personnel whether proof or documentation in any given case is sufficient to prove whether an item is an antique or meets the de minimis exception. The Service said that more guidance would be forthcoming.
•FWS banned the interstate trade of sport hunted trophies even if they were brought into this country before CITES was enacted
The simplest discussion of the rule along with a table describing enforcement and all of the criteria for exceptions can be found at http://www.fws.gov/international/pdf/questions-and-answers-african-elephant-4d-final-rule.pdf. As stated in the FWS press release that accompanied publication of the rule, their goal is a “Near-Total Elephant Ivory Ban.”
FWS continued to engage in double-speak in the final rule. Although they proclaimed the rule creates a near total ban on the trade of elephant ivory, they claimed the economic impact on people and businesses would be minimal. FWS also emphasized that their rule only applied to interstate commerce and does not limit people to trade ivory within a state.
So where do we go from here?
First, we need to continue the fight against state ivory bans. Among the good things to come out of this rule is the fact that our opposition forced FWS to take a year or more to address the multitude of flaws with this policy, and they had to create exemptions that give ivory owners a little breathing space to survive. We need to fiercely protect that space, and wherever possible, prevent states from enacting legislation that will further muddy the waters. So far we have prevented ivory bans in all states except New Jersey, New York, California, Washington and Hawaii. That’s a pretty good record when you consider about half of the country had pending legislation in one form or another over the past two years. Ironically, the federal ban gives us another tool to stop states from wasting resources on a state-level ban.
Second, we need to continue to engage politicians. An administration that truly cares about private property rights and genuine wildlife conservation can reverse this rule. NGOs will continue to fundraise off of crises they create and then divert some of those proceeds to politicians in order to keep their revenue streams flowing. This ivory ban is corrupt in every sense of the word. If the people profiting from this go unchallenged, then they will continue to exploit and expand upon the falsehoods and misconceptions that enable their behavior.
Third, there is litigation. The agency has taken final action, and the matter is unquestionably ripe. NGOs and the federal government have dared people to sue them, knowing that litigation will be a long and expensive process. The Ivory Education Institute took up that challenge with California’s ivory ban, and that process is playing out. Now it remains to be seen whether people will organize to fund a pre-emptive attack on the regulation, or whether individuals who are singled out for prosecution will bear the burden of defending themselves.
