Kevin P. Ray, National Law Review
January 5, 2015
In response to concerns that poaching of African elephants is rapidly driving the species to extinction, the U.S. Fish & Wildlife Service (USFWS) issued Director’s Order No. 210, which tightened previous practice involving the import, export, and sale of African elephant ivory. The changes met with considerable resistance from a wide range of persons, including museum professionals, musicians, antiques dealers, and collectors. There has been not only consternation, but also confusion about what these changes mean for many transactions involving objects that may contain ivory components.
To help provide some clarity on what precipitated these changes, what the changes are, and what impact they may have, I spoke with Craig Hoover, Chief of the U.S. Fish and Wildlife Service Wildlife Trade and Conservation Branch, for a brief Q&A.
1. What precipitated the action taken by USFWS in February 2014? (decimation of African elephant populations, alleged use of ivory sales to fund African and international terrorist activities, emerging international consensus on need to concerted action)
Hoover: The President’s Executive Order on Combating Wildlife Trafficking [Executive Order, July 1, 2013] called for a whole-of-government approach, including enhancing domestic efforts, to combat wildlife trafficking. This included taking all appropriate actions within our authority, including the promulgation of rules and regulations, to stop illegal trade in wildlife products. In light of the dramatic rise in elephant poaching and illegal trade in ivory, and the increasing level of sophistication and organization in that poaching and illegal trade, as well as a clear U.S. role as a consumer market, we determined that a series of administrative actions under our existing authority to further regulate the import, export and domestic sale of elephant ivory was needed.
2. News reports have alleged that illicit ivory sales have been used to finance terrorist group activities. Has USFWS and/or the international community been monitoring such activities, and was this a motivating factor?
Hoover: As our focus is on conservation, we largely leave this question to the Department of State, the Department of Defense and other agencies that address terrorism as a more direct mandate. That being said, we are certainly aware of the nexus between wildlife trafficking and insurgent groups and the destabilizing effect that poaching and illegal trade can have on other governments. Thus, our administrative actions and the National Strategy for Combating Wildlife Trafficking are positive efforts not just for conservation but also for people, particularly the local communities impacted by poaching and illegal trade.
3. How was African elephant ivory regulated under U.S. law (including treaty law) prior to issuance of Director’s Order No. 210 (DO210)?
Hoover: African elephant ivory has been regulated under U.S. laws and regulations, including the African Elephant Conservation Act (AECA), Endangered Species Act (ESA), and Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), for many years. Under the AECA, we’ve had a moratorium on the import of ivory in place since 1989 though, as a matter of enforcement discretion, we allowed the import of certain items to continue. Imports and exports have also been strictly regulated under the ESA and CITES regulations.
4. How does DO210 modify prior practice with respect to the import, export, sale and transfer of African elephant ivory?
Hoover: As noted above, the United States has had a moratorium on the import of African elephant ivory since 1989. As a matter of enforcement discretion, we were allowing certain African elephant ivory imports to continue despite the moratorium. DO210 narrowed the scope of those exceptions, particularly by prohibiting all commercial imports regardless of the age of the ivory. It also limits non-commercial imports to household moves and inheritances, musical instruments, and museum specimens that meet certain requirements. DO210 does not impact possession, sale or domestic transfer of African elephant ivory. More information about the Director’s Order and its impacts can be found here. [U.S. Fish & Wildlife Service, Director’s Order No. 210]
5. Is DO210 part of a concerted effort to combat the illicit killing of African elephants and the sale of their ivory?
Hoover: As described in the National Strategy for Combating Wildlife Trafficking, DO210 is one of several administrative actions that, when all are completed, will impose a near total ban on the trade in elephant ivory in the United States. We identified these actions as necessary to ensure that the United States, as a market for ivory, is not contributing to poaching and illegal trade, and to position the United States to encourage other countries to take similar actions to address their roles in the ongoing wildlife trafficking crisis.
6. Why was DO210 amended? What is the effect of this amendment?
Hoover: We revised DO210 on May 15, 2014 to address concerns, particularly from musicians and museums, about the DO210 criteria we initially laid out in February. This amendment addressed those concerns while still achieving our goal of limiting imports of African elephant ivory to certain non-commercial activities that are not contributing to poaching and illegal trade. The only change that related to African elephant ivory was to the date after which the item has not subsequently been transferred from one person to another person for financial gain or profit. The original date was Feb. 26, 1976 (the date the African elephant was first listed under CITES); the amendment changed this date to Feb. 25, 2014 (the date DO210 was issued).
7. After the effective date of DO210, is any commercial importation or exportation of African elephant ivory permitted?
Hoover: No commercial import is allowed. As a matter of enforcement discretion, we had been allowing the import of African elephant ivory items that were more than 100 years old. As of the issuance of DO210, we no longer allow the import of any African elephant ivory for commercial purposes, regardless of age. Commercial export of African elephant ivory is allowed under current ESA regulations, provided our general and CITES permitting requirements are met.
8. After the effective date of DO210, what non-commercial importation or exportation of African elephant ivory is permitted?
Hoover: We continue to allow the non-commercial import of the following, under certain conditions: sport-hunted trophies; law enforcement and bona fide scientific specimens; and worked elephant ivory that was legally acquired and removed from the wild prior to Feb. 26, 1976 and has not been sold since Feb. 25, 2014, as part of a household move or inheritance (read more), as part of a musical instrument (read more), and as part of a traveling exhibition (read more).
9. What other types of ivory are used, and how will they be affected by these actions?
Hoover: These actions will not affect ivory derived from other species such as walrus, warthog, hippopotamus, mammoth and mastodon. Asian elephant ivory is already regulated under the ESA and CITES. Ivory derived from toothed whales is already regulated by the ESA, CITES and the Marine Mammal Protection Act. Strict application of the definition of antique may limit some Asian elephant and whale ivory trade. Refer to our Q&A about antiques for more information.
10. How can I tell the difference between elephant ivory and other types of ivory?
Hoover: Buyer beware. Proceed with caution if you intend to purchase a product made of ivory. Ask for documentation that shows the species and age of the ivory item you are purchasing. This documentation could include CITES permits or certificates, certified appraisals, documents that detail date and place of manufacture, etc. It is possible to identify elephant ivory from other types of ivory. For more information, please visit the U.S. Fish & Wildlife Service’s Forensics Laboratory website.
11. After the issuance of DO210, is it permissible for a museum or musician to purchase objects that contain African elephant ivory outside of the U.S. and import them into the U.S.?
Hoover: No. Under the terms of DO210, items containing worked African elephant may not have been transferred from one person to another person for financial gain or profit since Feb. 25, 2014. Items obtained via a commercial transaction after Feb. 25, 2014, would not qualify for the exceptions for musical instruments or museum specimens.
12. After the date of DO210, may a museum or musician either import an object containing African elephant ivory into the U.S. or export such an object from the U.S. for temporary travel or exhibition?
Hoover: Yes. See the criteria laid out in Section 2 of DO210 for traveling exhibitions and musical instruments.
13. For a museum wishing to export an object containing African elephant ivory for a temporary exhibition, what is the procedure to be followed?
Hoover: Export of African elephant ivory is governed by different rules and restrictions. Commercial export of CITES Pre-Convention worked ivory, including antiques, that meet CITES permitting requirements, is allowed. Noncommercial exports must meet CITES permitting requirements. Export of any raw ivory is prohibited under the AECA and ESA. However, if the item is intended for return to the United States, it must meet the import requirements identified above.
14. If USFWS determines that an African elephant ivory item is imported contrary to the provisions of AECA, DO210, CITES or ESA requirements, what process is afforded the importer to dispute that determination?
Hoover: If we determine that the item was imported in violation of relevant wildlife laws and regulations, that item will be refused clearance. Depending on the particular situation, the item may be seized or made available for re-export. Congress has given USFWS the authority to seize property and to use non-judicial civil procedures to forfeit the seized property to the United States. After seizure of the property that the Government intends to pursue in a civil forfeiture action, we issue a letter termed “Notice of Seizure and Proposed Forfeiture” (NOSPF). The NOSPF gives interest holders notice of the seizure and proposed administrative forfeiture of the seized property, notice of the availability of administrative and judicial processes for contesting the proposed forfeiture, and notice of applicable deadlines for utilizing these processes. The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) and Interior regulations provide for alternative and not sequential remedies for administrative forfeiture: once notified, an interested party may choose to allow the forfeiture to proceed administratively or may compel the Government to initiate a judicial forfeiture action by filing a claim for the property. The relevant statute and regulations can be found at 18 U.S.C. § 983(a)(2)(B) and 50 C.F.R. 12.23 and 12.24.
15. What is meant by the ESA antiques exception?
Hoover: The import, export and interstate sale (sale across state lines) of listed species or their parts is prohibited without an ESA permit except for items that qualify as “antique”. To qualify as antique, the importer, exporter or seller must show that the item meets all of these criteria:
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 any such species after December 27, 1973; and
D. It is being or was imported through an endangered species “antique port.”
Under Director’s Order 210, as a matter of enforcement discretion, items imported prior to September 22, 1982 (the date the “antique ports” were designated), and items created in the United States and never imported must comply with elements A, B, and C above, but not element D.
Because the African elephant is regulated under the ESA via a “special rule”, the ESA exception for antiques does not apply. Rather, the language of the “special rule” dictates what is allowed and prohibited under the ESA.
16. What is an endangered species antique port?
Hoover: In establishing the antique exception under the ESA, Congress directed what was then the U.S. Customs Service to identify specific ports of entry where antiques made from endangered and threatened species can be imported. There are 13 of these locations: Boston, Massachusetts; New York, New York; Baltimore, Maryland; Philadelphia, Pennsylvania; Miami, Florida; San Juan, Puerto Rico; New Orleans, Louisiana; Houston, Texas; Los Angeles, California; San Francisco, California; Anchorage, Alaska; Honolulu, Hawaii; and Chicago, Illinois.
17. The Director’s Order refers to worked African elephant ivory that “was legally acquired prior to February 26, 1976.” What does that mean?
Hoover: February 26, 1976, is the date the African elephant was first listed under CITES (the pre-Convention date). An item that contains African elephant ivory that was removed from the wild prior to February 26, 1976, is considered to be a pre-Convention specimen. This does not mean that the current owner must have purchased or acquired it prior to 1976, but that the item was manufactured from ivory that was taken from the wild prior to 1976. For example, a musical instrument that was manufactured in 1965 using African elephant ivory would be considered a pre-Convention specimen. Likewise, an instrument manufactured in 1985 using ivory acquired by the manufacturer in 1975 would also be considered a pre-Convention specimen. Since it is unlawful to possess specimens that have been traded contrary to CITES or taken in violation of the ESA, the ivory must have been legally acquired.
18. Can I currently sell elephant ivory products within the United States?
Hoover: African elephant ivory that a seller can demonstrate was lawfully imported prior to January 18, 1990—the date that the African elephant was listed in CITES Appendix I—and ivory imported under a CITES pre-Convention certificate can be sold within the U.S. (across state lines and within a state) provided that no state laws are violated during the transaction. Some states have also taken steps to limit commerce in ivory. Asian elephant ivory sold in interstate commerce within the U.S. must meet the strict criteria of the ESA antiques exception.
Because the current rules regarding interstate commerce are different for African elephant ivory compared to Asian elephant ivory, a seller must be able to identify the ivory to species. This could be demonstrated using CITES permits or certificates, a qualified appraisal, or documents that detail date and place of manufacture, etc.
19. Why is USFWS allowing limited imports for non-commercial purposes to continue, but restricting the commercial importation of antiques made from African elephant ivory?
Hoover: The U.S. is a market for objects made from African elephant ivory, which drives increasing poaching of wild elephants. We have determined that it must take every administrative and regulatory action to cut off import of raw and worked elephant ivory where that importation is for commercial purposes. Allowing imports for law enforcement and scientific purposes is in line with our mission to help conserve African elephants and stop trafficking in African elephant ivory. The other limited exceptions allow movement into the U.S. of legally possessed African elephant ivory that predates the listing under the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES) for personal use as part of a household move or inheritance, musical performances, and traveling exhibitions. Each of these types of import must meet specific criteria. And unlike the commercial antiques trade, none of these types of imports has been used extensively by smugglers to “cover” trafficking in newly poached ivory.
20. For an object to qualify under the antique exception, what documentation or proof is required?
Hoover: DO210 Appendix A lays out in great detail the documentation requirements for items to meet the ESA exemption for antiques.
21. Is ownership and use of personally owned elephant ivory items affected?
Hoover: Personal possession of legally acquired items containing elephant ivory will remain legal. Worked African elephant ivory imported for personal use as part of a household move or as an inheritance and worked African elephant ivory imported as part of a musical instrument or a traveling exhibition will continue to be allowed provided the worked ivory has not been transferred from one person to another person in pursuit of financial gain or profit after February 25, 2014, and the item is accompanied by a valid CITES document. The import of raw African elephant ivory, other than sport-hunted trophies, is prohibited.
22. May lawfully possessed African elephant ivory be transferred to others? By gift? By bequest? Does a charitable gift or bequest to a museum or other charitable institution qualify as a transfer not “for financial gain” for purposes of DO210 if the donor receives a charitable tax deduction for the donation?
Hoover: Lawfully imported and possessed African elephant ivory can be used for noncommercial purposes, including transfer, bequest, or charitable gift, within the U.S. Such items can also be sold if the seller can demonstrate that the ivory was lawfully imported prior to the date the African elephant was listed in CITES Appendix I (January 18, 1990) or was imported under a CITES pre-Convention certificate.
We intend to revise the ESA “special rule” for the African elephant, including further restricting sale across state lines. Before finalizing those regulations, we will publish a proposed rule in theFederal Register for public review and comment.
23. Are any further modifications to DO210 or to the importation, exportation, or interstate sale of ivory anticipated at this time?
Hoover: We do not plan to revise DO210. However, as noted above, we do intend to revise the ESA “special rule” for the African elephant, further restricting interstate sale of ivory and incorporating at least some aspects of DO210 into its regulations. These regulations will be published as a proposed rule subject to public comment before being finalized, likely in 2015.
Additional information about the USFWS rules concerning the import, export, and sale of ivory is available on the USFWS’s ivory FAQ.
 See, e.g., Rep. Ted Poe (R-Tex.), “How Poaching Fuels Terrorism Funding,” CNN.com, Oct. 22, 2014, available here; Johan Bergenas and Monica Medina, “Break the Link Between Terrorism Funding and Poaching,” The Washington Post, January 31, 2014, available here. Others have challenged this claim. See, e.g., Tristan McConnell, “Illegal Ivory May Not Be Funding African Terror Group,” USA Today, Nov. 14, 2014, available here.