New Rules for Ivory & Tools Containing Ivory

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.

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.

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.

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.

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