On October 21st, 2014, I posted a blog on this website about the United States Fish and Wildlife Service’s Order 210 regarding the importation, exportation and sale of ivory in the U. S. (You can read the earlier post here.). This order applied to revisions to the Endangered Species Act Special Rule for the African Elephant. After publication of the proposed rule as put forth in Order 210, the Fish and Wildlife Service received over one million comments regarding the rule. Many tool collectors, tool dealers, tool groups, musicians, scrimshanders, antique dealers, and others took the time to comment on the new regulations. Those comments were “considered” and some small alterations were made to the rule. On June 6, 2016, the U.S. Fish and Wildlife Service published the final rule revising the African Elephant rule under section 4(d) of the Endangered Species Act [50 CFR 17.40 (e)] on June 6, 2016. The rule changes became effective July 6, 2016, 30 days after publication of the rule in the Federal Register.
Based on the information on the U.S. Fish and Wildlife Service web page (You can visit the FWS page here), here’s my interpretation of the rule as it is currently published:
1. The purchase, sale, and ownership of African elephant ivory containing tools is still legal within a state (intrastate commerce) if you can document that the ivory in the tool was lawfully imported prior to January 18, 1990. This documentation can be in the form of a certificate from the Fish and Wildlife Service, a dated photo, a dated letter, sales invoice, another document or other evidence referring to the item. If you live in New Jersey, New York, or California which have passed laws that are stricter than those adopted by the Fish and Wildlife Service, you should check your state laws regarding owning and/or selling ivory.
2. The sale of African elephant ivory items across state lines (interstate commerce) is prohibited, except for items that qualify as Endangered Species Act (ESA) Antiques and certain manufactured or handcrafted items that contain a small (de minimis) amount of ivory and meet specific criteria. De minimis is a Latin term used in the legal profession to describe something of minimal importance. In this case it’s used to describe something that is exempted from government rules or regulations.
To qualify for the Endangered Species Act Antiques Exemption, an item must meet all of the following criteria:
A. It must be 100 years old or older.
B. It must be composed in whole or in part from ivory from an Endangered Species Act listed species.
C. It must not have been repaired or modified with any Endangered Species Act listed species components (in this case ivory) after December 27, 1973.
D. It is being or was imported through an endangered species “antique port” (The allowable antique ports are Boston, New York, Baltimore, Philadelphia, Miami, San Juan, New Orleans, Houston, Los Angeles, San Francisco, Anchorage, Honolulu, and Chicago).
If the ivory containing tool was imported prior to September 22, 1982, or if the tool or item was created in the United States and never imported it must comply with elements A, B, and C above, but not element D.
To qualify for the de minimis exception, manufactured or handcrafted ivory tools must meet all of the following criteria:
(i) The ivory containing tool is located within the United States, the ivory containing tool 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 had to have been 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 tool and is not in its current form the primary source of the value of the tool, that is, the ivory does not account for more than 50% of the value of the tool. For tool collectors this could be a problem if the value of a woodworking plane containing ivory nuts, or a wedge, or other components made of ivory is more than twice the value of a similar wood working plane that does not include ivory.
(iv) The ivory must not be in a raw state, i.e. it can not be unworked ivory.
(v) The manufactured or handcrafted tool is not made wholly or primarily of ivory, that is, the ivory component or components do not account for more than 50 % of the tool by volume. This criterion would immediately make ivory rules not eligible for the exemption since ivory makes up more than 50% of their volume.
(vi) The total weight of the ivory component or components is less than 200 grams. 200 grams is equal to 7.055 ounces or just less than one half of a pound! In addition to the problems this causes for ivory rule collectors, this restriction could present a real problem for tools that contain several components made up of ivory such as fence adjusting nuts on a plow plane, an ivory wedge, or ivory inlay, etc.
(vii) The tool must have been 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 Fish and Wildlife Service to sell ivory containing tools across state lines. However, if you are offering tools containing African elephant ivory for sale or wish to buy ivory containing tools, you should be prepared to provide to the U.S. Fish and Wildlife Service, if asked, appropriate documentation demonstrating that the tool meets the criteria for either the Endangered Species Act Antiques Exemption or the criteria for the “de mininimus” exemption. The Fish and Wildlife Service doesn’t indicate what the “appropriate documentation” should be. However, this documentation might include information from old tool catalogs indicating the years of production for ivory rules or other tools containing ivory, tool collector’s guides which contain this information, original sales receipts, dated photographs or other documents that can help to date the tool, etc. If you are buying an ivory containing tool you should require this documentation from the seller if you don’t already have the information, and conversely, if you are selling an ivory containing tool you should pass along all documentation to the buyer of your ivory containing tools.¹ For more detailed information on documentation requirements, please refer to U.S. Fish and Wildlife Service website listed above.
Ivory rules were last made in the U.S. in or around 1925, and ivory was probably last used in wooden plow planes about 1900. So, if you’re a tool collector you need to understand these new regulations and keep them in mind if your buying or selling ivory containing tools. Ivory rule collectors will need to be extra cautious at least until 2025, when all of the U.S. made ivory rules should fall under the exemption of being more than one hundred years old. In short, the more information you have about ivory containing tools both before and after you buy them and certainly if you intend to sell them the less likely you are to run afoul of these regulations. The new regulations will still allow you to give your ivory containing tools to a museum or other non-profit (a cashless transaction), gift them to your heirs, or continue to enjoy them as part of your collection.
As I said before I’m not an expert, just a tool collector who wants to understand and follow the rules, which to my mind are complex and at times confusing. I hope my understanding of these regulations is correct, and that you find the information useful, but as you all know, trying to understand bureaucratic legalese is at best fraught with pitfalls. So I encourage you to also take the time to learn about these regulations. As always, I look forward to your comments.²
by Paul Van Pernis