- U.S. Criteria for The Antique Exception to the Ivory Ban
- February 25, 2015 | Author: Kevin P. Ray
- Law Firm: Greenberg Traurig, LLP - Chicago Office
- Before the new rule went into effect, objects at least 100 years old that are either made of African elephant ivory or included ivory components were exempt from the general Endangered Species Act (ESA) and Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) ivory prohibition. This changed dramatically under the original version of the rule that was issued in February, which (i) wholly eliminated the antique exception for commercial transactions (i.e., sales), and (ii) retained the antique exception for non-commercial transactions only if the object has not been sold after Feb. 26, 1976. Recognizing that the “non-commercial movement of musical instruments and certain other CITES pre-Convention” objects are not “contributing to the poaching crisis or to illegal trade,” the service amended its earlier order.
As modified in May, the rule now allows qualified antiques to be imported for non-commercial purposes (loans, traveling exhibitions, etc.). However, no commercial importation of any African elephant ivory is allowed, even if those objects would otherwise qualify as antique.
To qualify for the non-commercial antique exception, the importer or exporter must show (through appropriate documentation) that the object:
(i) is at least 100 years old;
(ii) is composed in whole or in part of an ESA-listed species;
(iii) has not been repaired or modified with any ESA-listed species after Dec. 27, 1973; and
(iv) is being or was imported through a designated endangered species “antique port.”
The U.S. established thirteen “antique ports” on Sept. 22, 1982, and required that all imports of ESA-listed species be made exclusively through those designated ports. These antique ports are: Boston, New York, Baltimore, Philadelphia, Miami, San Juan, New Orleans, Houston, Los Angeles, San Francisco, Anchorage, Honolulu, and Chicago.
Objects that were imported before Sept. 22, 1982 (and so before the antique ports were established) may still qualify for the antique exception, but the documentation accompanying such objects must satisfy the first three of the above-listed criteria.
Commercial Import, Export and Interstate Sales
No commercial importation of African elephant ivory is permitted (effective Feb. 25, 2014). Commercial export of worked African elephant ivory is permitted, provided that the ivory is accompanied by a CITES pre-Convention certificate showing that it was removed from the wild no later than Feb. 26, 1976. Raw African elephant ivory may not be exported.
Interstate sale of African elephant ivory is permitted, but only if the seller shows (through appropriate documentation) that (i) the object was lawfully imported prior to Jan. 18, 1990 (the date that the African elephant was listed in CITES Appendix I), or (ii) the object was (or its ivory components were) imported under a CITES pre-Convention certificate. Since interstate commerce in ivory derived from species other than African elephants is separately regulated, anyone attempting to sell any ivory in interstate transactions must be able to document the species the applicable ivory is derived from.
Forms of ivory are, in fact, derived from many different species, a number of which fall within different regulatory schemes. For instance, ivory is derived from walruses, warthogs, hippopotami, mammoths, mastodons, and narwhals. Whale tooth ivory is regulated by not only the ESA and CITES, but also by the Marine Mammal Protection Act.
While it is possible to identify elephant ivory from other types of ivory, it is not possible “to distinguish between African and Asian elephant ivory visually or by most analytical methods, with the exception of DNA analysis.” Moreover, “[a]s ivory desiccates it loses its surface luster and becomes harder. With the passage of time, these changes can make visual identification more difficult. Indeed, ancient ivory, bone and wood (as from archaeological contexts) can appear quite similar, requiring the use of analytical testing for identification.” The difficulty of distinguishing ivory species and ivory age by visual inspection alone makes maintaining full and accurate documentation of ivory and ivory-containing objects essential. Such documentation should include any CITES permits or certificates, certified appraisals, bills of sale, and documentation of the place and date the object was manufactured. Unfortunately, many objects in private and public collections either wholly lack this documentation or are incompletely documented. This lack of documentation may render ivory and ivory-containing objects unsaleable, and may also preclude their export.
Personal Ownership and Personal Use
The new rule does not prohibit personal ownership of either worked or raw African elephant ivory, but the general rule prohibiting its commercial importation do apply. Therefore, it is not possible for an individual to purchase either raw or worked African elephant ivory abroad and bring it to the U.S.
There are, however, three circumstances in which such ivory may be imported for non-commercial personal use. The first two of these circumstances have common requirements. Worked African elephant ivory may be imported for personal use either (a) as part of a household move, or (b) as part of an inheritance. In each case, importation is permitted only if (i) the ivory was legally acquired before Feb. 26, 1976, (ii) the ivory has not been transferred from one person to another person “in pursuit of financial gain or profit” after Feb. 25, 2014, and (iii) the item is accompanied by a valid CITES pre-Convention certificate.
The third circumstance in which importation is allowed is for sport-hunted trophies. African elephant ivory (either worked or raw) may also be imported as part of a sport-hunted trophy.
Museum Acquisitions and Loans
The new ivory rule has striking impacts on museum acquisitions and loans. In a presentation to the U.S. House of Representatives Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs, the Association of Art Museum Directors warned that “two vital components of museum activities have been impacted [by the new ivory rule:] the ability of U.S. Art Museums to acquire new works and the ability of U.S. Art Museums to take part in exchanges of international exhibitions and direct loans with foreign lenders.”
Before the new rule was issued in February, U.S. museums could acquire antique ivory and objects containing ivory from seller’s abroad and import them. After Feb. 25, 2014, museums may only acquire ivory in interstate sales within the U.S. Gifts to museums of ivory objects are permitted, provided the objects have proper documentation. Ivory-containing objects in U.S. museum collections whose importation would now be prohibited include (i) an Etruscan bronze chariot inlaid with ivory (Metropolitan Museum of Art), (ii) a 6th century Byzantine Ivory Pyx (Box) (Cleveland Museum of Art), (iii) a 14th century French Diptych (Detroit Institute of Arts), and (iv) an 18th century German sculpture, Christ Crucified (National Gallery of Art).
Worked African elephant ivory and objects containing such ivory may be imported for museum exhibitions only if the following criteria are satisfied: (i) the ivory was legally acquired prior to Feb. 26, 1976, (ii) the ivory has not been transferred from one person to another in the pursuit of financial gain or profit after Feb. 25, 2014, (iii) the person or group seeking to import the object qualifies for a CITES traveling exhibition certificate, and (iv) the object is accompanied by a valid CITES traveling exhibition certificate or an equivalent CITES document. Raw African elephant ivory cannot be imported, even for museum loans.
The effects of the new rule on museum loans are already being felt. In October, several mummies and their associated funerary objects that were being imported for the exhibition, “Afterlife: Tombs and Treasures of Ancient Egypt,” were detained by customs officials in Miami. The funerary objects included ivory vessels and jewelry, which required examination and confirmation. While the mummies and ivory objects were ultimately released to the museum, the museum community remains concerned about the uncertainty and unpredictability of the process, and the possible risks to fragile and irreplaceable objects.
Musicians are also feeling the effects of the new rule. Many musical instruments, particularly antique musical instruments, contain ivory elements. “Older guitars have ivory inlays, and their strings rest on small bars of ivory on each end. And with stringed instruments, it’s not the instrument itself but the bow.” As with museum acquisitions of antique ivory objects, musicians also are now prohibited from importing any instruments purchased abroad that contain African elephant ivory.
Musical instruments containing worked African elephant ivory may be imported and exported in non-commercial (non-sales) transactions, but only if: (i) the ivory was legally acquired prior to Feb. 26, 1976, (ii) the ivory has not been transferred from one person to another person in pursuit of financial gain or profit after Feb. 25, 2014, and (iii) the item is accompanied by a CITES musical instrument passport or CITES traveling exhibition certificate, available in single-use or multi-use varieties.
Documentation Is Critical
The new rule for African elephant ivory reinforces the importance of full and proper documentation for collectibles. All ivory-containing objects, whether antique or not, must be accompanied by (i) all necessary CITES permits or certificates showing that the ivory was (a) legally acquired prior to Feb. 26, 1976, or (b) legally imported after Sept. 22, 1982 through a designated antique port; (ii) certified appraisals, (iii) bills of sale, (iv) documentation of the place and date the object was manufactured, and (v) documentation identifying the species from which the ivory was derived. Director’s Order No. 210, Amendment 1, emphasizes that “[n]otarized statements or affidavits by the exporter or seller, or a CITES pre-Convention certificate alone, are not adequate proof that the article meets the ESA exception.”
While a lack of documentation may render objects unsaleable, insufficient documentation could also cause museums to be reluctant or unable to accept charitable donations of such objects. Even if a donation were accepted, the object’s appraised value would be severely limited, since no legal U.S. market for undocumented African elephant ivory exists. The donor’s consternation could be compounded were the IRS’s Art Advisory Panel to follow precedent and value the object based on a market value on an illicit market, resulting in an estate tax liability.
 Most European countries, by contrast, exempted such objects that were only 50 years old.
 Asian elephant ivory sold in interstate commerce within the United States must meet the criteria of the antique exception.