New Rules for Ivory & Tools Containing Ivory

Piano Keys (Cropped for Featured Image)

On February 25th, 2014, the United States Fish and Wildlife Service enacted Director’s Order 210 restricting the importation, exportation, and sale of ivory in the U.S.  This order was reinforced in July, when President Obama issued an Executive Order committing the U.S. to step up its efforts to stop wildlife trafficking.  It’s estimated that 30,000-35,000 African elephants are illegally killed by poachers each year and that these elephants face extinction within a decade if this illegal poaching isn’t stopped.  China is far and away the biggest market for this illegal ivory followed by the state of New York and the state of California.

Plow plane with ivory tips

Plow plane with ivory tips

The goal of preserving endangered animals through the restriction of illegal imports seems straightforward, reasonable, and an admirable goal.  But the issued regulations are convoluted and confusing causing tool collectors to wonder what all this means for the ownership, purchase, or sale of ivory containing tools they have in their collections.  You can view the regulations at, www.fws.gov/international/travel-and-trade/ivory-ban-questions-and-answers.html.  So what does this mean for tool collectors?  Well, after clearly stating that I am not an attorney, nor do I work for any government agency, and I claim no expertise regarding these regulations, here’s my take on the regulations derived from my review  of the regulations and multiple articles written on the subject .

  • The purchase, sale, and ownership of ivory containing tools are all legal within a state with a few exceptions, i.e. New Jersey, New York, and California – more about this later.
  •  The interstate (across state lines) purchase and or sale of ivory containing tools is legal if the tool is:
    • 100 years or older and was created in the U.S or imported to the U.S. prior to September 22nd, 1982.
    • Must not have been repaired, restored, or modified with any ivory imported into the U.S. after December 28th, 1973.  The Endangered Species Act was signed into law by President Richard Nixon on December 28th, 1973.
    • Must be comprised in whole or in part of an ESA (Endangered Species Act) listed species.  there are over 2000 endangered or threatened species included in the ESA (Brazilian rosewood is one of them!).
  • The purchase and subsequent importation of an antique tool containing ivory from outside the U.S. is legal if the above criteria are met and:
    • It is being imported through an endangered species “antique port”.  Those ports are Boston, New York, Baltimore, Philadelphia, Miami, San Juan, New Orleans, Houston, Los  Angeles, San Francisco, Anchorage, Honolulu, and Chicago.
Ivory sector, English, 2nd half of the 19th century

Ivory sector, English, 2nd half of the 19th century

The ability to meet these criteria prior to the purchase of an ivory containing tool could be very difficult since the vast majority of these tools lack provenance records.   Not too many carpenters and craftsmen kept their sales receipts when they bought a tool 120 years ago, if they even received a sales receipt. In addition most of these tools have travelled from hand to hand over the last century.  Ironically in the midst of these complicated regulations that could make the average tool collector feel like a criminal, the Fish and Wildlife Service while decrying the tragedy of the illegal killing of African elephants by poachers states that it will still be perfectly legal for hunters to import two “sport hunted trophies”( that’s two heads and four tusks) into the U.S. each year.  That ivory is legal and not subject to the federal restrictions.  It’s hard to square that with the stated goal of preventing further reduction in the numbers of remaining elephants.

Ivory piano keys

Old Piano With Ivory Keys

For collectors living in New Jersey, New York, and California the rules are even more strict.  New Jersey and New York have passed laws that go beyond the federal regulations by prohibiting the sale of ivory within both states.  They do allow exemptions for antiques using the federal regulations listed above and allow the intrastate sale of musical instruments (string, wind and pianos) that were manufactured before 1975.  Most American piano manufacturers stopped using ivory for piano keys in the 1950’s and 60’s.  Problems could arise if  you wanted to sell that old Steinway you inherited from Aunt Bertha and you can’t prove where the replaced ivory keys came from when the piano was restored back in 1992.  California Penal Laws 653o and 653p which have been on the books since 1970 state – It is unlawful to import into this state for commercial purposes, to possess with the intent to sell, or to sell within the state, the dead body, or any product thereof,of ant polar bear, leopard,ocelot, tiger, cheetah, jaguar, sable antelope, wolf(Canis lupis), zebra, whale, cobra, python, sea turtle, colobus monkey, kangaroo, vicuna, sea otter, free roaming feral horse, dolphin or porpoise(Delphinidae), Spanish lynx, or elephant.  Despite being on the books since 1970, the law was not vigorously enforced until 2012.  In February of this year California agents “raided” a flea market confiscated some ivory items and issued citations to the owners.  Two weeks later they entered the Slawinski Auction Company in northern California and confiscated ivory items valued at $150,000.  The items were eventually returned after the agents examined all of the items and found that they were in compliance with federal law.

Ivory Ivory scale made by J&E Archbutt, England, between 1864-1892

English Scale made in Ivory by J&E Archbutt of Westminster between 1864-1892

So what’s a tool collector supposed to do?  The new regulations require the owner of the ivory containing tool to prove that the tool meets the federal requirements. So it’s very important that you read and try to understand these federal and stat regulations.  You may also want to consider:

  1. Not adding any new ivory rules or ivory containing tools to your collection unless the purchase meets all the federal criteria.  Those of you residing in New Jersey, New York, and California have to also meet the state criteria.
  2. Not transporting any ivory containing tools across state lines or in or out of the U.S.
  3. At least for the present time avoid including any ivory containing tools in displays, lectures, or sales at tool group meetings.
  4. Working to establish provenance for the ivory containing tools in your collection.  Ivory rules were last produced in the U.S.in 1925, so ivory rules produced prior to 1915 would meet the “antique” criteria.  Ivory was last used in wooden plow planes about 1900.  Use old catalogs, reprinted catalogs and the multitude of excellent books and articles that are available to help date and identify your tools.
  5. Ask for and save all the documentation when you buy or sell ivory containing tools.  Insist upon good documentation from the seller and deal only with a reputable seller.

Is there any possibility these regulations will be revised?  Yes, there are two identical bills that have been introduced in Congress.  H.R. 5052 was introduced by Representative Steve Daines of Montana, and S. 2587 was introduced by Senator Lamar Alexander of Tennessee.  The proposed legislation would allow the possession, sale, delivery, receipt, shipping, and transportation of items containing ivory that has been legally imported into the U.S.  It would also specify that the federal regulations recently enacted may not “..change any methods of, or standards for, determining if such ivory has been lawfully imported that were in effect on February 24, 2014, including any applicable presumptions and burdens of proof with respect to such determinations.”  Passage of that legislation would go a long way towards solving these problems for tool collectors and dealers.  Your comments and encouragement forwarded to your Senators and Representative may help move this legislation along.

Well that’s my take on this issue.  Remember, I’m no expert, just a tool collector, but the more you know the better.  Proceed with caution!  I’ll look forward to your thoughts and comments.

 

Paul Van Pernis

 

 

9 Comments on “New Rules for Ivory & Tools Containing Ivory

  1. Thank you Paul for giving us this information about Ivory and the new regulations that clearly affect tool collectors. I hope that this post gets wide distribution so that EAIA members will have an opportunity to understand and read more about the law as it applies to tools and other objects that contain ivory.
    I do hope that the slaughter of the elephants will be slowed by this legislation. It is unfortunate that sportsmen are allowed an exemption to bring back the skull and ivory when a tool collector who has a 100 year old ivory rule that has no defined provenance faces forfeiture.

    • Do I understand that this also applies to Whale bone & walrus tusks used to make tools

      • Des,

        As you can imagine, the regulations regarding whale bone, whale teeth, and walrus tusks are also complicated. Sperm whales are an endangered species and have been protected since 1973. No sperm whale bones or teeth can be imported or exported unless the owner can prove that it was legally obtained prior to 1973. Nor can it be transported across state lines. If legally obtained it can be sold intrastate if state law allows it. Antique scrimshaw (i.e. greater than 100 years old) that meets all the federal regulations can be sold interstate and intrastate unless state law prohibits its sale. Bowhead whale bone is legal to sell due to an exemption allowing Eskimos to hunt whales and sell crafts they make from them. Walrus have also been protected since 1972protected. The Walrus ivory that predates the 1972 law and bears the Alaska State walrus regulation tags or post law ivory that has been carved or scrimshawed by an Alaskan native is legal to buy, sell, and own. Any walrus ivory that was obtained after 1972 is not legal to buy or sell unless both parties are Alaskan natives. But, it’s legal to own unless state law says otherwise. Fossil walrus ivory is legal to but, sell, and own. However you need a special permit to export it. So, Des, it’s still confusing and requires knowledge of what you’re buying, what it’s made of, and where and when it was made. Good Luck!

        • Tes, tbe Marine Mammal Protection Act (MMPA) protects Alaska Native rights to hint and use the inedible by-products of walrus, whale, polar bear, seals, sea otters. The destruction happening to our sustainable resource market is because this is not made explicitly clear by our government or articles like this, where you fail to distinguish between walrus and elephant ivory.

  2. John,
    Thanks for your comments. Hopefully this issue can be resolved so tool collectors can still include ivory containing tools in their collections

  3. The bills sighted are the best way to stop the USFWS changes. But we all have to keep up pressure on our government representatives, to get one or both passed. One thing the article didn’t mention is that there is also legislation being introduced that will make “wildlife trafficking” a felony offense. The burden of proof is being placed on us and we will not be innocent until proven guilty. I am a founding member of the Elephant Protection Association, and we are actively fighting for the right to buy and sell our pre- 1989 ivory. To stay updated on this and everything connected to the changes go to http://www.elephantprotection.org.

  4. Thank you for your informative article. I am curious as to how one proves ivory pieces dating back over 100 years if these pieces were inherited from family. I have a large collection of Inuit scrimshaw and fishing lures, which came from my great uncle, who was an Inuit (mother was an Inuit) and his father who was a whaling ship captain.

    • Ophelia,
      This is the difficult part of this whole problem! The new regulations put the onus on the owner of the objects to prove that they predate the ban, or are over one hundred years old. I would suggest that you put together a file on your uncle and his father, their dates of birth and death and any photographs you may have of these men. Proof of their Inuit heritage will also help you prove the authenticity to the U.S. Fish and Wildlife services. There are laboratory test that can be done to help prove the age and origin of ivory, but they are expensive and cause some damage to the items. If you have the historical provenance regarding these items, I think it would be very hard for anyone to doubt their age and origin. All of this is only a problem if you wish to sell or transport the items across state lines. Good luck!

      Paul

      • Thank you so much for getting back to me. I do have photos of both my uncle and the Captain and a few of my uncle with his Inuit mother and her family. I will start collecting what I have. My goal is to one day meet the Inuit side of my family, if even possible.
        You have been so helpful…the most understandable information I’ve found on this law. Thanks again!

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