Unlike the famous Stevie Wonder song “Ebony and Ivory,” ivory is no longer living in harmony in the eyes of the U.S. Fish and Wildlife Service. Many clients are surprised to discover the numerous rules and regulations surrounding the sale of decorative objects and musical instruments that have an ivory component. In recent years, there are have been several proposals and revisions of the Endangered Species Act especially regarding African ivory and its presence in the United States. All these restrictions have and will continue to have a negative impact on the market value of items containing ivory. Although there are exceptions for antique ivory pieces, it will become very difficult to sell locally or in another state since it is up to the owner to provide enough evidence that satisfies these new ivory rules. Substantial documentation, with a clear chain of ownership and entry into the Unites States is now key to the resale of legal ivory.

As of June 6, 2016, the federal government published their final ruling on the sale of African Ivory which will take effect starting July 6, 2016. These new regulations include decorative items which contain a component of African ivory. However, there is an exemption for particular objects that meet the following criteria (frequently termed by U.S. Fish and Wildlife Service as “de minimus exception”):

A. If the item is located in the United States, the ivory must have been imported prior to January 18, 1990, or imported under a CITES pre-Convention certificate with no limitation on its commercial use.             
B. If the item is located outside of the United States, the ivory must have been removed from the wild prior to February 26, 1976.
C. The ivory is a fixed or integral component or components of a larger manufactured item and is not the primary source of the value of the item, that is, the ivory does not account for more than 50 percent of the value of the item.            
D. The ivory is not raw.
E. The manufactured item is not made wholly or primarily of ivory, that is, the ivory component or components do not account for more than 50 percent of the item by volume.                    
F. The total weight of the ivory component or components is less than 200 grams.
G. The item must have been manufactured before the effective date of the final rule.

In addition, the ivory components in a piece or set must be no more than 200 grams (which is roughly 7 ounces). This amount would approximately be slightly larger than a cue ball. Thus, several types of items may qualify such as musical instruments with ivory parts or veneers, teapots with ivory insulators, furniture and guns with ivory inlay, flatware with ivory grips, walking sticks and canes with ivory decoration, etc. However, objects that are composed wholly or mostly of ivory (i.e. more than fifty percent of its volume) cannot qualify for de minimus exception including ivory chess pieces and sets, ivory carvings, and ivory earrings.

Another possible exemption is called the “Endangered Species Act (ESA) antiques exemption” in which the item must comply with the following conditions:*

A. It is 100 years or older.
B. It is composed in whole or in part of an ESA-listed species.
C. It has not been repaired or modified with an ESA-listed species after December 27, 1973.
D. It is being or was brought into the United States through a port designated for the import of endangered species antiques.
 *Under Director’s Order 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.

It is important to note that the burden of proof for an item to be considered ESA antiques exempt is the responsibility of the owner and not the government. In the U.S. Fish and Wildlife Service’s Q&A, they state: “Though not required, a qualified appraisal or another method of documenting the value of the item and the relative value of the ivory component, including, information in catalogs, price lists, and other similar materials, can also be used.”

In order to sell ivory interstate, the seller/owner will have to demonstrate that the ivory qualifies as an ESA antique or meets the de minimus criteria. As for selling within a state, proof must be provided (e.g. CITES pre-Convention certificate, a datable photo, a dated letter or other document) that the object was lawfully imported prior to the date that the species was listed in CITES Appendix I (January 18, 1990 for the African elephant). Such rigorous restrictions on the trade of items containing African ivory will cause a dramatic downturn in value for these pieces, even if all conditions for minimus exception are met. Likely any ivory made within the past one hundred years will become impossible to sell even within state lines.

So what options are left for owners who are unable to prove that their ivory qualifies for exemption? According to the ESA 4(d) rule and other federal wildlife laws and regulations such as CITES and the ESA, an item made with ivory can be donated or gifted as long as it was lawfully acquired and that no exchange for other goods or services is involved. Fish and Wildlife strongly recommend that the recipient is provided with any records or documentation that demonstrate the provenance of the item(s). Always make sure that such an exchange is in compliance with local laws as rules vary from state to state.

To learn more about these revisions to the Endangered Species Act regarding African ivory, please visit the U.S. Fish and Wildlife Service’s website. Below please find a few links from which information for this article was sourced:

"Endangered and Threatened Wildlife and Plants; Revision of the Section 4(d) Rule for the
African Elephant"  PDF of Final Ruling

"Revisions to the Endangered Species Act (ESA) Special Rule for the African Elephant Questions and Answers" Questions and Answers Regarding the Ruling 

ADDITIONAL RESOURCES

US Fish and Wildlife Service Permit Guidelines Frequently Asked Questions and Answers

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Official Website

"Antique dealers say the new federal ivory ban will cost owners up to $12 billion" Washington Post

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© Courtney Ahlstrom Christy 2014

Ahlstrom Appraisals | Personal Property Appraisals and Art Consultations | Serving Atlanta & Southeast | Fine Art, Antiques & Vintage