Understanding Ivory Law

Applique depicting the head of pan, East Greek, about 100 B.C.E., Ivory, courtesy The J. Paul Getty Museum

Applique depicting the head of pan, East Greek, about 100 B.C.E., Ivory, courtesy The J. Paul Getty Museum

On June 6, 2016, the Department of the Interior published a final rule on the possession, sale, transportation, import and export of African elephant ivory, revising the Code of Federal Regulations to create a virtual ban on the commercial trade in ivory in the US. Certain states followed suit. Ivory laws are complex, overlapping, and subject to discretionary enforcement. Jonathan Riedel, a Fitz Gibbon Law intern and University of New Mexico Law School student, has prepared a guide to both federal and state ivory laws which we are pleased to include in our Resource materials.

Like other Resource materials, the guide is not legal advice.

Introduction

On June 6, 2016 the Department of the Interior, through the Fish and Wildlife Service, published a final rule which revised the Code of Federal Regulations, Vol. 50, Section 17.40(e). This rule was promulgated under the authority of 16 U.S.C. Section 1533(d) of the Endangered Species Act (ESA) for African elephants. This new rule went into effect on July 6, 2016 and provides important regulations that antique art dealers and art collectors need to be aware of and understand.

The Fish and Wildlife Service’s final rule builds on and expands restrictions already in place under the African Elephant Conservation Act of 1989 (AfECA). The AfECA imposed a moratorium on importing most African elephant ivory into the United States or exporting African elephant ivory out of the United States.

The final rule now in effect, in conjunction with AfECA and ESA, provide very limited exceptions for importing or exporting ivory to or from the United States. There is a ban on all interstate commercial trade in elephant ivory, again with narrow exceptions. These laws can be daunting for anyone selling, buying, working with, or owning ivory.

In addition to the complicated federal laws. New York, New Jersey, California, and Washington State have even more restrictive laws in place that further complicate lawful trade in antique ivory. Hawaii has also passed an ivory trade law that will go into effect in January 2017.

This article attempts to make sense of the current state of ivory laws in the United States in order to help those who sell, buy, work with, or own ivory understand their rights and responsibilities. Readers should be mindful that although the final federal rule on ivory has been published, there are numerous states with proposed legislation that will continue to impact the ivory trade.

A Brief Look at Ivory
What is ivory? A 1991 World Wildlife Fund publication [1] defines ivory as the teeth or tusk of any mammal. Traditionally, the term “ivory” is most often used to refer to the tusks of elephants, but the mammoth, walrus, whale, narwhal, hippopotamus, and even the wart hog all produce true ivory. A tusk can be viewed in simple terms as a large tooth that protrudes from the mouth to give some species an evolutionary advantage.

Ivory has been used throughout history and has always been seen as valuable. The Bible refers to it in 1 Kings 10:18 describing King Solomon’s “great throne of ivory” and again in 1 Kings 10:22: “once in three years came the navy of Tharshish, bringing gold… and ivory.” Virtually all ancient civilizations, from China to the Mediterranean to even the ancient Americas used ivory from various species to make works of art.

Today, the highest demand for elephant ivory is in China, Thailand, and other Asian nations; China is by far the largest market destination for illegal, poached raw ivory of both African and Asian elephants.[2] The illicit trade is largely driven by Asian demand, but the easy availability of poached ivory in Africa worsens the situation; there is almost no domestic control imposed by African national governments in major trading cities such as Abidjan, Khartoum, Kinshasa, Lagos, and Luanda.[3]

US Laws on the Ivory Trade
The legal landscape regarding the trade in ivory in the United States began to change in 1975 when the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)[4] went into effect.[5] CITES grouped plant and animal species in need of protection into three categories based on the level of threat to the survival of each species: Appendix I, Appendix II, and Appendix III. Each category had different restrictions on trade; species may move between categories based upon their current threat level. The CITES member countries agreed that all importing, exporting, and other actions of restricted species would be controlled through a licensing system.  The CITES licensing system excluded antique specimens as not relevant to its conservation program.

Asian elephants have always been listed as endangered in CITES Appendix I, where highly endangered species are listed. Under the Convention, any international trade in Asian elephant ivory that is not over 100 years old is almost always illegal. The history of African elephants within CITES is not so clear. African elephants have been listed in all three Appendices at one time or another. In the 1990’s, the African elephant was listed in Appendix II which allowed for some trade in ivory, such as importing sport-hunted specimens.[6]

The Endangered Species Act (ESA) of 1966 is the vehicle for enforcing the CITES convention under US domestic law. 16 U.S.C. § 1531 (4)(F). The US Fish and Wildlife Service is designated to carry out CITES under the ESA. The ESA uses different categories than CITES: rather than listing in an Appendix, the ESA defines species as “endangered” and “threatened.” The Asian elephant has always been listed as endangered under the ESA, and, therefore, Asian elephant ivory less than 100 years old has not been legal to trade in the US since 1975. There are a few exceptions for Asian elephant ivory, but the law surrounding Asian elephants is relatively straightforward under the ESA. The African elephant presents different issues.

In 1989, the United States passed the African Elephant Conservation Act (AfECA), which imposed a moratorium on the importation of African elephant ivory. 16 U.S.C. § 4222. Despite the moratorium, the Secretary of the Interior issued a rule under the ESA that allowed some trade in African elephant ivory under certain circumstances. Sport-hunted trophies, which required permits from the African nations that promoted hunting, were an exception to the moratorium and could be imported into the United States. The rule also allowed persons to import carved ivory with a permit, but exporting raw ivory from the United States was not allowed.

Another exception to the moratorium was for antique ivory. To claim this exception, the ivory had to meet four (4) requirements:

  1. The ivory is not less than 100 years old;
  2. The ivory is composed in whole or in part of any endangered species or threatened species;
  3. The ivory has not been repaired or modified with any part of any such species on or after December 28,1973; and,
  4. The ivory was brought in through a specified port,[7]

16 U.S.C. § 1539(h)(l)(A)-(D). The burden of proving the ivory falls within an exception lies entirely with the person claiming the exception. 16 U.S.C. § 1539(g). Even though the rule promulgated by the Secretary of the Interior under the ESA did not legally overrule the moratorium, Fish and Wildlife basically decided through discretion to allow these exceptions.

In 2014, the world saw a drastic decline in the African elephant population. This was due to the Asian economy boom, poaching, and some other factors. Some have argued that poaching was funding terrorism, but there is no factual proof of this. According to Craig Hoover (Chief, Division of Wildlife Management Authority, U.S. Fish and Wildlife Service), in response to the dwindling population of African elephants, President Obama signed a national strategy for combating wildlife trafficking. One of the elements to the strategy was a near-total ban on elephant ivory trade.

The first step towards implementing President Obama’s strategy was implementing the enforcement of the moratorium under AfECA. Commercial importing of elephant ivory is now prohibited with no exceptions. The next step towards implementing President Obama’s strategy was amending 50 CFR section 17.40(e) with the rule that went into effect on July 6, 2016.

The Final Rule Which Amends 50 CFR § 17.40(e)
The final rule does not change or overrule the ESA or AfECA. It does, however, provide for certain very narrow exceptions to the near-total ban on elephant ivory trade. The F&WS has stated that “we are not invoking authority under AfECA to ban the import of antique ivory. Rather, as commenters note, this activity is already banned pursuant to AfECA. The AfECA moratorium on import of ivory other than sport-hunted trophies remains in place. Thus, noncommercial import of certain items, including law enforcement and scientific items, musical instruments, items as part of a household move or inheritance, and exhibition items, where it can be demonstrated for each such item that the ivory was removed from the wild prior to 1976, remains prohibited under the AfECA import moratorium. However, under Director’s Order 210, as amended on May 15, 2014, as a matter of law enforcement discretion, the Service will not enforce the AfECA moratorium with respect to these limited exceptions.” Executive Summary to the Final Rule, Federal Register / Vol. 81, No. 108 / Monday, June 6, 2016.

Antiques exception.

Under Director’s Order 210 there is a complete ban on importing African elephant ivory for commercial use. If the requirements are met to show the ivory is antique, there is no restrictions on non-commercial trade only, under the circumstances described just above. Under 50 CFR § 17.40(e)(3), an antique is defined as “any item that meets all four criteria under section 10(h) of the Endangered Species Act (16 U.S.C. 1539(h)). 50 CFR § 17.40(e)(1). The four criteria that must be met to qualify an antique object under the ESA are:

  1. The ivory is not less than 100 years old;
  2. The ivory is composed in whole or in part of any endangered species or threatened species;
  3. The ivory has not been repaired or modified with any part of any such species on or after December 28,1973; and,
  4. The ivory was brought in through a specified port.

16 U.S.C. § 1539(h)(l)(A)-(D).Some of the most difficult requirements to meet are for scientific testing and requiring the use of outside experts to prove to the satisfaction of the F&WS that the item is over one-hundred years old and what species it is. According to the F&WS’ website, to prove the age of ivory a person can use “bona fide testing using scientifically approved aging methods by a laboratory or facility accredited to conduct such tests, a qualified appraisal, or another method that documents the age by establishing the origin of the article.”[8]

Proof of the species is also required and according to F&WS “can be in the form of bona fide DNA analysis, a qualified appraisal, or other documentation that definitively demonstrates the identification of the species through a detailed provenance of the article.”[9]

Once it is proven that the ivory meets the criteria to be classified as an antique, there are additional requirements in order to commercially export worked ivory: an affidavit must state that the object has been in the United States since September 22, 1982 or legally imported under CITES. Documentation required to show continuous possession in the United States includes photographs, insurance records, appraisals, and any other evidence that would prove the ivory was continuously in the United States.

De Minimis Exception.

The next exception is the de minimis exception. 50 CFR § 17.40(e)(3). There are seven requirements that an item must meet in order to claim the de minimis  exception. All seven requirements must be met. These seven requirements are:

  1. If the item is located within the U.S., the item must have been imported prior to January 18, 1990, or was imported into the U.S. under a CITES pre-Convention certificate with no limitation on its commercial use;
  2. If the item is located outside the U.S., the item was taken from the wild prior to February 26, 1976;
  3. The ivory is a fixed or integral part of a larger manufactured or handcrafted item and is not the primary source of value for the item, that is, the ivory does not account for more than fifty (50) percent of the value;
  4. The ivory is not raw;
  5. The ivory does not account for more than fifty (50) percent of the item by volume;
  6. The total weight of the ivory is less than 200 grams; and,
  7. The item was manufactured or handcrafted before July 6,2016.

50 CFR § 17.40(e)(3)(i)-{vii). The de minimis requirements theoretically allow for an exception to the ban of commercial Ivory trade. However, section (9) of this rule states “nothing in this rule interprets or changes any provisions or prohibitions that may apply under the AfECA, regardless of the age of the item.” 50 CFR § 17.40(e)(9). What this means is that the de minimis rule only carves out an exception for interstate commercial trade of African elephant ivory. Importing or exporting under this exception is not legal.

Musical Instrument Exception.

Another exception carved out by the current rule is for musical instruments. Small amounts of ivory were frequently used in the construction of older string, wind, and percussion instruments and bows, including many fine instruments less than 100 years old. Musicians and musician organizations protested the new ivory rules, claiming that that the proposed rule made it impossible for professional musicians to travel internationally with their instruments The rule now states that “[musical instruments that contain worked ivory may be imported into and exported from the United States” if they meet the following four requirements:

  1. The ivory was legally acquired prior to February 26,1976;
  2. The ivory is accompanied by a valid CITES musical instrument certificate or equivalent CITES document;
  3. The instrument is marked so that authorities can confirm the validity of the CITES certificate; and,
  4. The instrument is not sold, traded, or otherwise disposed of while outside the certificate holder’s country of usual residence.

50 CFR § 17.40(e)(5)(i)(emphasis added). The burden of proving the exception lies entirely with the person claiming it. If you plan to own and transport a musical instrument containing worked ivory, you must ensure that you have the proper CITES certificate or other relevant CITES documents to accompany it. This exception is for non­commercial use only.

Traveling Exhibition Exception.

Additionally, there is an exception for traveling exhibitions. Similar to the musical instrument exception, to claim this exception the ivory must be worked and part of a traveling exhibition that meets the following four requirements:

  1. The ivory was legally acquired prior to February 26,1976;
  2. The worked ivory is accompanied by a valid CITES traveling exhibition certificate (requirements for certificate can be found at 50 CFR 23.49);
  3. The ivory is marked so that authorities can confirm the validity of the CITES certificate; and,
  4. The ivory is not sold, traded, or otherwise disposed of while outside the certificate holder’s country of usual residence.

50 CFR § 17.40(e)(5)(ii). Just as with musical instruments, anyone claiming this exception must understand that the burden of proof of the exception lies entirely with the person claiming the exception. Persons claiming this exception must ensure they have the necessary CITES certificate or relevant CITES documents well in advance of travel. Again, this exception is for non-commercial use only.

Household Moves Exception.

Furthermore, ivory that is part of a household move or is inherited has an exception. The exception reads “[worked ivory may be imported into or exported from the United States…for personal use as part of a household move or as part of an inheritance” if the following two (2) requirements are met:

  1. The ivory was legally acquired prior to February 26,1976; and,
  2. The item is accompanied by a valid CITES pre-Convention certificate.

50 CFR § 17.40(e)(5)(iii). This exception is for non-commercial use. Under this section it is illegal to “sell or offer for sale in interstate or foreign commerce or to deliver, receive, carry, transport, or ship in interstate or foreign commerce and in the course of a commercial activity any African elephant ivory imported into the United States as part of a household move or inheritance.” The de minimis exception also does not apply to ivory brought in under this section. Like other exceptions, the key to this exception is obtaining the proper CITES certificate or other relevant CITES document. The certificate or document must be readily accessible.

Sport Hunted Trophies.

Also, there is an exception for sport-hunted trophies. The relevant section under the new rule states that “African elephant sport-hunted trophies may be imported into the United States” if the following five (5) requirements are met:

  1. The trophy was legally taken in an African elephant range country that declared an ivory export quota to the CITES secretary for the year in which the trophy was taken;
  2. A determination is made that the killing of the trophy animal will enhance the survival of the species and the trophy is accompanied by a threatened species permit under § 17.32;
  3. The trophy is legibly marked in accordance with 50 CFR part 23;
  4. The requirements in 50 CFR parts 13,14, and 23 have been met; and,
  5. No more than two African elephant sport-hunted trophies are imported by any hunter in a calendar year.

50 CFR § 17.40(e)(6) (emphasis added). Sport-hunted trophies have largely been allowed into the United States as long as certain requirements are met. The requirements take time to follow properly. Prior to hunting it is advisable to understand all the requirements. The final rule’s big change to the previous rule is it limits the number of trophies that can be brought in to two (2) per hunter per year. This appears to be Fish and Wildlife’s attempt to balance the perceived good that sport-hunting does for a species and the outcry about the perceived harm it causes. Just like any other exception, the person claiming the exception has the burden of proof. Any certificates or required CITES documents must be readily accessible. This exception is for non-commercial use. Ivory imported under this exception cannot be sold or offered for sale in interstate or foreign commerce. The de minimis exception discussed earlier does not apply to sport-hunted trophies.

Law Enforcement and Scientific Purposes.

Finally, there is an exception for importing or exporting ivory for law enforcement purposes or genuine scientific purposes. Law enforcement may import raw or worked ivory and export worked ivory for law enforcement purposes. 50 CFR § 17.40(e)(7). This ivory cannot be sold or offered for sale in interstate or foreign commerce. Raw or worked ivory may be imported into the United States and worked ivory may be exported from the United States for “genuine scientific purposes that will contribute to the conservation of the African elephant” if the following two (2) requirements are met:

  1. The ivory is accompanied by a threatened species permit issued under § 17.32; and,
  2. The requirements of 50 CFR parts 13,14, and 23 have been met.

50 CFR § 17.40(e)(8). This exception is for non-commercial use. Ivory cannot be sold or offered for sale in interstate or foreign commerce under this exception. These exceptions are very specific and likely will not apply to most people.

What does this mean in layman’s terms?
Having shown that the current federal laws are complex and confusing, it is time to try to make sense of it all in layman terms. Remember that once somebody is past the hurdles of federal laws, state laws must also be complied with.

First, what African elephant ivory can be non-commercially transferred? Non-commercial transfer generally means a loan or a gift or an inheritance. Under the ESA, an item that qualifies as antique can be both imported and exported non-commercially. Under the current rule and Director’s Order 210, a musical instrument or an item in a traveling exhibition that was legally acquired prior to February 26, 2016 can be both imported and exported non-commercially. Non-commercial movement of legally acquired ivory is allowed for both interstate and intrastate transfers.

 Next, what African elephant ivory can be commercially traded? For imports, the answer is simple: none, it is banned. It is not legal to commercially import any African elephant ivory into the United States under AfECA and Director’s Order 210. However, it is legal to export ivory that qualifies as antique under the ESA. Finally, interstate commercial trade is allowed for ivory that qualifies as antique under the ESA or qualifies for the de minimis exception. Intrastate sale of ivory (transactions entirely within a specific state) is still lawful in many US states. (But see the state laws below that may make both interstate and intrastate trade unlawful!)

It is essential to follow permit and/or license requirements under CITES to qualify for some of the exceptions. Permitting requirements can be found under 50 CFR § 17.32. Permits are not discussed here. Because these and other aspects of the law are complex, we encourage contacting the Fish and Wildlife Service when in doubt. F&WS websites also offers many resources.[10]

There are currently four states with active ivory ban laws; Hawaii has also passed a law that will go into effect in January of 2017
States are starting to write laws that enhance federal laws. State laws are much simpler to follow, but they are just as important to be aware of because they do tend to be more restrictive. The four states that currently have active ivory laws are New York, New Jersey, California, and Washington State. New York is seen as the art capital of the United States and, therefore, the New York law is highly important to understand. All three of the state laws control African elephant ivory trade along with most other ivory trade including mammoth ivory trade and the laws all control rhinoceros horns trade. All states claim that animal poaching is a serious problem (which is not being argued against) and this justifies very strict standards on the ivory trade.

New York

The New York statute can be found in their Environmental Conservation Law (ECL), article 11, title 5, section 11-0535-a. This statute is almost a complete ban on trading of any ivory or rhinoceros horns and provides very minimal exceptions. Subdivision 2 of this statute states “[e]xcept as otherwise provided in subdivision three of this section, no person shall sell, offer for sale, purchase, trade, barter or distribute an ivory article or rhinoceros horn.”

There are four exceptions to the complete ban on ivory trade and in order to claim any of them a person needs to get a permit from the commissioner. ECL § 11-0535-a(3). The four exception which a permit may be issued for are:

  1. The ivory or rhinoceros horn is a “bona fide antique” and is less than twenty percent by volume of such antique, and the owner has documentation that proves the item is not less than one-hundred years old;
  2. The use of the ivory or rhinoceros horn is for educational or scientific purposes, or the ivory is used by a museum under specific requirements;
  3. The distribution of the ivory or rhinoceros horn is to a beneficiary of a trust or an heir of an estate; and,
  4. The ivory or rhinoceros horn is part of a musical instrument, but is no more than twenty percent by volume of the musical instrument, and the owner must have documentation to show that the item was manufactured no later than 1975 if it contains elephant ivory and no later than June 30, 2014 if the item contains mammoth ivory.

ECL § 11-0535-a(3)(a)-(d).

This New York ivory ban law has been enforced very strictly. For all practical purposes it is very hard to get a permit to sell intrastate because documenting the age of the ivory is very hard. An expert opinion without other documentation is usually not enough. However, it only applies to intrastate trade and is pre-empted by the ESA for other trade. So, New York will let you trade ivory interstate, but the permit issued to do this will state that the ivory cannot be displayed in New York.

 

New Jersey

The New Jersey law can be found at NJSA § 23:2A-13.3. New Jersey makes it “unlawful for any person to import, sell, offer for sale, purchase, barter, or possess with intent to sell, any ivory, ivory product, rhinoceros horn, or rhinoceros horn product, except as provided pursuant to this section.” NJSA § 23:2A-13.3(a). The exceptions to the New Jersey law are few and are enforced very strictly. There are four exceptions to the ban on ivory trade and they are:

  1. The ivory can be passed through inheritance;
  2. Law enforcement activity is exempt from this law;
  3. Ivory can be imported when expressly authorized by a federal license or permit; and,
  4. The Department of Environmental Protection can authorize exemption from this rule for bona fide educational or scientific purposes.

NJSA § 23:2A-13.3(c)-(f).

Once again New Jersey law is pre-empted by the ESA and if a person has a valid license or permit New Jersey will allow ivory trade. However, intrastate trade is very difficult because requirements are strictly enforced. It is safe to assume that an expert opinion alone will not be enough to make ivory legal to trade in the state of New Jersey.

 

California

The Californian legislature identified a serious problem with animal poaching. In response they enacted a law that almost completely bans ivory trade. The law can be found in California’s Fish and Wildlife Code, section 2022. California’s complete ban of sales of ivory includes marine mammal ivory; section 2011(1)(B)(2) states, “(2) “Ivory” means a tooth or tusk from a species of elephant, hippopotamus, mammoth, mastodon, walrus, warthog, whale, or narwhal, or a piece thereof, whether raw ivory or worked ivory, and includes a product containing, or advertised as containing, ivory. Banning sales of marine mammal ivory in California (which is legal in all other states) was allegedly done to prevent sales of elephant ivory from being disguised or claimed to be marine mammal ivory. This is highly unlikely and would not be successful, as the marketing of marine mammal ivory carvings, which original in Canada and Alaska, is part of the broader Native American art market. The types and forms of objects created are completely different, and it is already illegal under both California and federal law to sell items as Native American if they are not. Nonetheless, lawmakers included marine mammal ivory in the California ban. In 2016, consumer confusion about ivory laws in general, exacerbated by the California law, appears to have resulted in a 40% drop in the sales of traditional crafts by Alaska natives.[11]

There are five exceptions to the California law as follows:

  1. Law enforcement activity;
  2. An activity authorized under federal law or authorized with a federal permit or license;
  3. A musical instrument consisting of no more than twenty percent by volume of ivory and the owner or seller has documentation showing the item was manufactured prior to 1975;
  4. An antique item with no more than five percent ivory by volume if the owner or seller has documentation showing the ivory is over one-hundred years old; and
  5. The ivory is being used for educational or scientific reasons by a bona fide scientific or educational institution if the ivory meets two additional requirements:
    1. There is not a federal ban on the ivory; and,
    2. The ivory or rhinoceros horn was legally acquired before January 1, 1991, and was not subsequently transferred from one person to another for financial gain or profit after July 1, 2016.

West’s Ann.Cal.Fish & G.Code § 2022(c)(1)-(5).

Because this is a newer law—operative July 1, 2016—it is not entirely clear how it will be enforced just yet. However, the law is written to provide easy and strict enforcement of the contents. For example, the law states that possession of ivory in a retail or wholesale outlet commonly used to sell similar items is evidence of intent to sell. West’s Ann.Cal.Fish & G.Code § 2022(d). Until it is proven otherwise, a person should assume that California will strictly enforce this law similar to New York and New Jersey.

 

Washington State

The Washington State law is similar to the other state laws previously discussed. The Washington State legislature introduced the law, which was passed after a public vote, in response to perceived poaching problems. Unlike the other state laws, Washington State law is a bit more confusing to read.

The law can be found in the Revised Code of Washington, Title 77, Chapter 77.15. The law makes it “unlawful for a person to sell, offer to sell, purchase, trade, barter for, or distribute any covered animal species part or product.” West’s RCWA 77.15.135. “‘Covered animal species’ means any species of elephant, rhinoceros, tiger, lion, leopard, cheetah, pangolin, marine turtle, shark, or ray either: (a) Listed in appendix I or appendix II of the convention on international trade in endangered species of wild flora and fauna; or (b) listed as critically endangered, endangered, or vulnerable on the international union for conservation of nature and natural resources red list of threatened species.” West’s RCWA 77.08.010. There are also six (6) exceptions to the ban which are:

  1. The ivory is not less than one-hundred years old (antique), the owner has documentation proving the ivory is antique, and the ivory is not more than fifteen percent by volume of the antique item;
  2. The ivory is used for bona fide educational or scientific purposes;
  3. The ivory is part of an inheritance;
  4. Law enforcement activity;
  5. The ivory is part of a musical instrument and is not more than fifteen percent by volume of the instrument; and,
  6. The trade of the ivory is expressly authorized by federal law or permit.

West’s RCWA 77.15.135(2)(a)-(e).

Like the other three state laws currently being enforced, Washington State’s ivory ban applies to intrastate transactions. Federal laws control interstate and international ivory trade. Washington State’s law does not include mammoth ivory or marine ivory like some of the other state laws. It is safe to assume that the law will be strictly enforced and that any exceptions will put the burden of proof on the person claiming them.

Hawaii

Hawaii has recently passed a law that will add a new section to chapter 183D of the Hawaii Revised Statutes. Enforcement of the law will begin in 2017. The law is more restrictive than any of the other state laws because it protects so many species of animals. The law will make it illegal to “sell, offer to sell, purchase, trade, or possess with intent to sell” any part or product from elephants, rhinoceroses, or other numerous animal species listed in the law. There are exceptions to the ban which are:

  1. The ivory is not less than one-hundred years old (antique), it is not more than twenty percent by volume of the antique, and it is not the primary source of value of the antique;
  2. The ivory is for bona fide educational or scientific purposes;
  3. The ivory is part of an inheritance;
  4. The ivory is less than twenty percent by volume of a gun, knife, or musical instrument and the owner or seller can prove the item was not manufactured after 1975 and the ivory is not the primary source of value for the item; and,
  5. The trade of ivory is authorized by federal law or permit.

This law will likely be enforced strictly as it provides that possession of ivory in a place that sells similar items will serve as proof of intent to sell. Also, behind New York and California, Hawaii is the third largest U.S. market for illegal ivory. This law is aimed to combat that statistic and anyone dealing in ivory should expect this new law to be strictly enforced.

The following table (information from The Journal of Paleontological Sciences)[12] shows states that have either active bills or have introduced bills that have failed:

State Bill Status
Arizona House Bill 2176
(includes mammoth ivory)
Died in committee
Arkansas Senate Bill 928 Died in committee
Colorado House Bill 16-1341 Died in committee
Connecticut Bill 5700 Active
Delaware Senate Bill 156
(includes mammoth ivory)
Currently in banking and business committee
Florida Senate Bill 1120
(includes mammoth ivory)
Died in committee
Illinois Senate Bill 1858
(includes mammoth ivory)
Currently in committee
Iowa SF 30
(includes mammoth ivory)
Currently in sub-committee
Maryland House Bill 713 Unfavorable report by Judiciary, but remains in committee
Massachusetts House Bill 1275
(includes mammoth ivory)
Currently in committee
Michigan Senate Bill 371 and House Bill 4509
(includes mammoth ivory)
Referred to committee on natural resources
Nevada Senate Bill 398
(includes mammoth ivory)
Currently in committee
Oklahoma House Bill 1787 Currently in committee
Oregon Senate Bill 913
(includes mammoth ivory)
Currently in committee
Rhode Island House Bill 5660
(includes mammoth ivory)
Committee recommended the measure be studied further
Vermont House Bill 297
(includes mammoth ivory)
Currently in committee
Virginia Senate Bill 1215 Died in committee

 

The District of Columbia and Pennsylvania also have active bills. Idaho and Maine are considering bills and either state could introduce a bill soon. The main takeaway from this table is to illustrate that more and more legislation is being considered to address the ivory trade. Anyone who deals with ivory needs to be aware that restrictive laws exist not only federally, but potentially on the state level.

[1] Edgar O. Espinoza and Mary-Jacque Mann, “Identification Guide for Ivory and Ivory Substitutes,” originally published by the the World Wildlife Fund and the Conservation Foundation, reprinted as part of the CITES Identification Manual,

https://cites.org/sites/default/files/eng/resources/pub/E-Ivory-guide.pdf

[2] Christian Nellman et al, Elephants in the Dust: The African Elephant Crisis, UNEP, CITES, IUCN, TRAFFIC (2013) A Rapid Response Assessment. United Nations Environment Programme, http://www.grida.no/publications/rr/elephants/

[3] Id. at 40.

[4] The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international agreement to regulate the international trade in endangered species of fauna and flora to ensure their survival is not threatened. CITES entered into force in 1975 and had 175 nation-signatories by 2013.

[5] CITES was signed on 3 March 1973, US ratified on January 14, 1974, entry into force July 1, 1975. 

[6] The African elephant was listed in Appendix III of the CITES convention in 1976 and moved to Appendix II in 1977.  In 1990, after reports of severe population losses, the African elephant was moved to Appendix I of CITES. In 1997, some recovering populations were moved back to Appendix II with strict limitations on trade in ivory.

https://www.fws.gov/international/animals/african-elephants.html

[7] After September 22, 1982, all wildlife (including parts and products) had to be imported into or exported from the US through specific U.S. Fish and Wildlife Service designated ports. 50 CFR 14.12.

[8] “An appraisal submitted as documentary evidence of an article’s eligibility under the ESA antique exception must meet the following criteria:

  • The person executing the appraisal either has earned an appraisal designation from a recognized professional appraiser organization for demonstrated competency in appraising the type of property being appraised or can demonstrate verifiable education and experience in assessing the type of property being appraised.
  • The person executing the appraisal is not the importer, exporter, buyer, recipient or seller of the article; does not benefit from the results of the appraisal (other than for the cost of the appraisal); is not a party to any of the transactions associated with the article (including any person acting as an agent for the transaction); is not an employee of any business that is a party to the transaction; and is not related to the person claiming the exception.
  • Facts we will examine in determining the reliability of the appraisal:
    • A description of the article in sufficient detail for a person who is not generally familiar with the type of article to determine that the appraisal is about the article in question.
    • The name and address of the qualified appraiser; or if the appraiser is a partner, an employee, or an independent contractor engaged by a person other than the person claiming the exception, the name and address of the partnership or the person who employs or engages the appraiser.
    • The qualifications of the appraiser who signs the appraisal, including the background, experience, education and any membership in professional appraiser associations.
    • The date on which the article was appraised.
    • The scientific method in detail used to determine the age or species.
    • Descriptive information on the article including but not limited to: the size of the article; the medium; the artist or culture; approximate date the article was created; and a professional quality image of the article.
    • A detailed history of the article including proof of authenticity.
    • The facts on which the appraisal was based including analyses of similar works by the artist on or around the creation date.”

https://www.fws.gov/international/travel-and-trade/questions-and-answers-esa-cites.html#11

[9] Id.

[10] fws.gov

[11] http://www.npr.org/2016/11/24/503036303/ivory-ban-hurts-native-alaskans-who-legally-carve-walrus-tusks

[12] http://www.aaps-journal.org/fossil-ivory-legislation.html

[1] Edgar O. Espinoza and Mary-Jacque Mann, “Identification Guide for Ivory and Ivory Substitutes,” originally published by the the World Wildlife Fund and the Conservation Foundation, reprinted as part of the CITES Identification Manual,

https://cites.org/sites/default/files/eng/resources/pub/E-Ivory-guide.pdf

[1] Christian Nellman et al, Elephants in the Dust: The African Elephant Crisis, UNEP, CITES, IUCN, TRAFFIC (2013) A Rapid Response Assessment. United Nations Environment Programme, http://www.grida.no/publications/rr/elephants/

[1] Id. at 40.

[1] The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international agreement to regulate the international trade in endangered species of fauna and flora to ensure their survival is not threatened. CITES entered into force in 1975 and had 175 nation-signatories by 2013.

[1] CITES was signed on 3 March 1973, US ratified on January 14, 1974, entry into force July 1, 1975.

[1] The African elephant was listed in Appendix III of the CITES convention in 1976 and moved to Appendix II in 1977.  In 1990, after reports of severe population losses, the African elephant was moved to Appendix I of CITES. In 1997, some recovering populations were moved back to Appendix II with strict limitations on trade in ivory.

https://www.fws.gov/international/animals/african-elephants.html

[1] After September 22, 1982, all wildlife (including parts and products) had to be imported into or exported from the US through specific U.S. Fish and Wildlife Service designated ports. 50 CFR 14.12.

[1] “An appraisal submitted as documentary evidence of an article’s eligibility under the ESA antique exception must meet the following criteria:

  • The person executing the appraisal either has earned an appraisal designation from a recognized professional appraiser organization for demonstrated competency in appraising the type of property being appraised or can demonstrate verifiable education and experience in assessing the type of property being appraised.
  • The person executing the appraisal is not the importer, exporter, buyer, recipient or seller of the article; does not benefit from the results of the appraisal (other than for the cost of the appraisal); is not a party to any of the transactions associated with the article (including any person acting as an agent for the transaction); is not an employee of any business that is a party to the transaction; and is not related to the person claiming the exception.
  • Facts we will examine in determining the reliability of the appraisal:
    • A description of the article in sufficient detail for a person who is not generally familiar with the type of article to determine that the appraisal is about the article in question.
    • The name and address of the qualified appraiser; or if the appraiser is a partner, an employee, or an independent contractor engaged by a person other than the person claiming the exception, the name and address of the partnership or the person who employs or engages the appraiser.
    • The qualifications of the appraiser who signs the appraisal, including the background, experience, education and any membership in professional appraiser associations.
    • The date on which the article was appraised.
    • The scientific method in detail used to determine the age or species.
    • Descriptive information on the article including but not limited to: the size of the article; the medium; the artist or culture; approximate date the article was created; and a professional quality image of the article.
    • A detailed history of the article including proof of authenticity.
    • The facts on which the appraisal was based including analyses of similar works by the artist on or around the creation date.”

https://www.fws.gov/international/travel-and-trade/questions-and-answers-esa-cites.html#11

[1] Id.

[1] fws.gov

[1] http://www.npr.org/2016/11/24/503036303/ivory-ban-hurts-native-alaskans-who-legally-carve-walrus-tusks

[1] http://www.aaps-journal.org/fossil-ivory-legislation.html