Ivory Update Spring/Summer 2016

1. IVORY RESTRICTIONS - On July 6, 2016, a near-total ban on commercial trade in African elephant ivory went into effect in the United States. The information on this webpage is intended to provide guidance for those who wish to buy, sell, or otherwise trade in elephant ivory. It’s important to note that the new regulations do not restrict personal possession of ivory. If you already own ivory – an heirloom carving that’s been passed down in your family, or a vintage musical instrument with ivory components, those pieces are yours. We know those items created long ago aren’t threatening today’s wild elephants.   
For more detailed information on trade in African elephant ivory see the Endangered Species Act final 4(d) rule for the African elephant and associated FAQs, our CITES implementing regulations (50 CFR part 23), Director’s Order 210, and the African Elephant Conservation Act. In addition to the information provided on this webpage, you must also comply with any relevant state laws and all imports and exports must be accompanied by appropriate CITES documents and meet other U.S. Fish & Wildlife Service (Service) import/export requirements.

Six Important Ivory Questions
     

1.1 Can I sell African elephant ivory items…

    

The sale of African elephant ivory items across state lines (interstate commerce) is prohibited, except for items that qualify as ESA antiques and certain manufactured or handcrafted items that contain a small (de minimis) amount of ivory and meet specific criteria.

Interstate commerce is always prohibited for the following:

• sport-hunted trophies
• items imported under the exception for a household move or inheritance
• items imported as law enforcement or scientific specimens

To qualify for the ESA antiques exemption, an item must meet all of the following criteria [seller/importer/exporter must demonstrate]:

• It is 100 years or older.
• It is composed in whole or in part of an ESA-listed species;
• It has not been repaired or modified with any such species after December 27, 1973; and
• It is being or was imported through an endangered species “antique port.”

Under Director’s Order No. 210, as a matter of enforcement discretion, items imported prior to September 22, 1982, and items created in the United States and never imported must comply with elements A, B, and C above, but not element D.

To qualify for the de minimis exception, manufactured or handcrafted items must meet (i) or (ii) and (iii) - (vii) of the following criteria:

(i)  If the item is located within the United States, the ivory was imported into the United States prior to January 18, 1990, or was imported into the United States under a Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) pre-Convention certificate with no limitation on its commercial use;

(ii)  If the item is located outside the United States, the ivory was removed from the wild prior to February 26, 1976;

(iii)  The ivory is a fixed or integral component or components of a larger manufactured or handcrafted item and is not in its current form the primary source of the value of the item, that is, the ivory does not account for more than 50 % of the value of the item;

(iv)  The ivory is not raw;

(v)   The manufactured or handcrafted item is not made wholly or primarily of ivory, that is, the ivory component or components do not account for more than 50 % of the item by volume;

(vi)  The total weight of the ivory component or components is less than 200 grams; and

(vii)  The item was manufactured or handcrafted before July 6, 2016.

For items made of African elephant ivory that qualify as an ESA antique or meet the de minimis criteria, you do not need a permit from the Service to sell ivory across state lines. However, if you are offering African elephant ivory for sale, you should be prepared to provide appropriate documentation to the Service, if asked. We would also suggest that you pass along all documentation to the buyer of your elephant ivory items. For detailed information on documentation requirements, please refer to Director’s Order 210.

Some states have laws prohibiting or restricting sale of ivory. Check to make sure that you are also in compliance with local and state laws. Contact the state to check on their requirements.

1.2 I have an antique ivory figurine. Can I sell it online? 

If you can demonstrate that it qualifies as an ESA antique, you can sell it. However, state laws and online retailer policies may further restrict or prohibit ivory sales. Always consult with your state and the retailer to determine their requirements.

 

1.3 Can I sell Asian elephant ivory items…

The sale of Asian elephant ivory across state lines is prohibited except for items that qualify as ESA antiques.

To qualify for the ESA antiques exemption, an item must meet all of the following criteria [seller/importer/exporter must demonstrate]:

• It is 100 years or older.
• It is composed in whole or in part of an ESA-listed species;
• It has not been repaired or modified with any such species after December 27, 1973; and
• It is being or was imported through an endangered species “antique port.”*

Under Director’s Order No. 210, as a matter of enforcement discretion, items imported prior to September 22, 1982, and items created in the United States and never imported must comply with elements A, B, and C above, but not element D.

*U.S. Customs and Border Protection (CBP) designated 13 ports for the entry of antiques made of ESA-listed species on September 22, 1982 (19 C.F.R. 12.26). The following ports are authorized: Boston, Massachusetts; New York, New York; Baltimore, Maryland, Philadelphia, Pennsylvania; Miami, Florida; San Juan, Puerto Rico; New Orleans, Louisiana; Houston, Texas; Los Angeles, California; San Francisco, California; Anchorage, Alaska, Honolulu, Hawaii; and Chicago, Illinois.

For items made of Asian elephant ivory that qualify as an ESA antique, you do not need a permit from the Service to sell ivory across state lines. However, if you are offering Asian elephant ivory for sale, you should be prepared to provide appropriate documentation to the Service, if asked. We would also suggest that you pass along all documentation to the buyer of your elephant ivory items. For detailed information on documentation requirements, please refer to Appendix 1 of Director’s Order 210.

Some states have laws prohibiting or restricting sale of ivory. Check to make sure that you are also in compliance with local and state laws. Contact the state to check on their requirements.

 

1.4  What does “legally acquired prior to February 26, 1976” mean?   

    February 26, 1976, is the date the African elephant was first listed under CITES (the pre-Convention date). An item that contains African elephant ivory that was removed from the wild prior to February 26, 1976, is considered to be a pre-Convention specimen. This does not mean that the current owner must have purchased or acquired it prior to 1976, but that the item was manufactured from ivory that was taken from the wild prior to 1976. For example, a musical instrument that was manufactured in 1965 using African elephant ivory would be considered a pre-Convention specimen. Likewise, an instrument manufactured in 1985 using ivory acquired by the manufacturer in 1975 would also be considered a pre-Convention specimen. Since it is unlawful to possess specimens that have been traded contrary to CITES or taken in violation of the ESA, the ivory must have been legally acquired.

 1.5 Can I donate or give away elephant ivory?    

  Yes. Federal wildlife laws and regulations such as CITES, the ESA, and the AfECA do not prohibit donating or giving away your ivory item, or receiving an ivory item as a donation or a gift, provided it was lawfully acquired and there is no exchange for other goods or services involved. We recommend that you provide the recipient with any records or documentation you have that demonstrate the origin and chain of ownership of the items. Check to make sure that you are also in compliance with local and state laws. Contact the state to check on their requirement.

 

1.6 What is meant by the ESA antiques exemption?    

 To qualify for the ESA antiques exemption, an item must meet all of the following criteria [seller/importer/exporter must demonstrate]:
   

• It is 100 years or older.
• It is composed in whole or in part of an ESA-listed species;
• It has not been repaired or modified with any such species after December 27, 1973; and
• It is being or was imported through an endangered species “antique port.”*

Under Director’s Order No. 210, as a matter of enforcement discretion, items imported prior to September 22, 1982, and items created in the United States and never imported must comply with elements A, B, and C above, but not element D.
*U.S. Customs and Border Protection (CBP) designated 13 ports for the entry of antiques made of ESA-listed species on September 22, 1982 (19 C.F.R. 12.26). The following ports are authorized: Boston, Massachusetts; New York, New York; Baltimore, Maryland, Philadelphia, Pennsylvania; Miami, Florida; San Juan, Puerto Rico; New Orleans, Louisiana; Houston, Texas; Los Angeles, California; San Francisco, California; Anchorage, Alaska, Honolulu, Hawaii; and Chicago, Illinois.

Antiques that meet these criteria (ESA antiques) are exempt from ESA prohibitions and the provisions in the African elephant final 4(d) rule.  ESA antiques may be sold in interstate and foreign commerce and may be imported or exported without the need for an ESA permit.  However, CITES and other import/export requirements must still be met.  In addition, the moratorium on import of African elephant ivory under the African Elephant Conservation Act remains in effect for antiques and other African elephant ivory (other than sport-hunted trophies).

How do I demonstrate that my ivory item meets the criteria to qualify for the ESA antiques exemption?

Under the ESA, a person claiming the benefit of the antiques exemption has the burden of demonstrating that the item qualifies for the exemption. This is true for all ESA-listed species, including African and Asian elephants. We have provided guidance in Appendix 1 of Director’s Order 210 on ways to demonstrate that an item qualifies as an ESA antique.

We want to clarify that forensic testing is not necessarily required. Provenance and age may be determined through a detailed history of the item, including but not limited to, family photos, ethnographic fieldwork, art history publications, or other information that authenticates the article and assigns the work to a known period of time or, where possible, to a known artist or craftsman. A qualified appraisal or another method, including using information in catalogs, price lists, and other similar materials that document the age by establishing the origin of the item, can also be used.

 https://www.fws.gov/international/travel-and-trade/ivory-ban-questions-and-answers.html