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American Society of Appraisers – Update
FWS Releases Final Ivory Rule; Answer Key Question on Appraiser Liability

The Fish and Wildlife Service (FWS) released final rules related to the near total ban on sales of items containing African elephant ivory on June 2. In responding to specific questions in the final rule, FWS answered a question specifically asked by ASA regarding potential appraiser liability for appraisals used in connection with two exemptions from the ban (the existing antique exemption, and a new “de minimis” exemption). The comment and response follow:

Comment: The American Society of Appraisers asked whether and to what extent the Service plans to pursue legal or administrative recourse against appraisers who perform “best efforts” appraisals only to discover after some time that key assumptions or determinations that underpinned the appraisal are determined to be inaccurate.

Response: In Appendix 1 to Director’s Order 210, we have provided explicit information on what the Service will accept as a qualified appraisal and facts we examine in determining the reliability of the appraisal. An appraisal using appropriate professional expertise based on the best available information at that time that is later determined to be incorrect would not subject that appraiser to legal action under this rule. We expect an appraiser or other individual to be able to act in good faith in his or her professional capacity.

Also of interest in the final rule is the statement that appraisers need not undertake scientific testing in every instance to determine the age of ivory in an item, and that other facts and information can be relied upon in establishing age. The FWS also elected not to establish a panel to preemptively review transactions involving close cases for use of an exemption, instead maintaining that the burden will fall on those who wish to use an exemption to establish that an item qualifies for the exemption.

To read the full text of the proposed rule click here. To read the Q&A regarding the final rule, issued by FWS, click here. To read specific excerpt from both the Q&A and the final rule that are germane to appraisers, click here.
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For more information visit ASA Online or call (800) 272-8258.

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