By Kevin P. Ray, Esq., Greenberg Traurig, LLP, Chicago
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n February 2014, in response to poaching of African elephants, the U.S. federal government tightened restrictions on the import, export, transfer, and sale of African elephant ivory and rhinoceros horn. The new rule’s most controversial change has been its limitation of the antique exception to the general ban on ivory, which previously allowed commercial and non-commercial import, export, transfer, and sale of objects at least 100 years old that were either made of ivory or included ivory elements. New York and New Jersey have similarly tightened their restrictions on the trade in and transfer of ivory. California, Maine, and Hawaii are expected to follow suit. Response to the change was swift, and, from many sectors, strongly negative. Collectors, museums, orchestras, and musicians pointed out that the new rule would ban much long-standing collecting and cultural exchange activity. The policy was modified in May, in response to these objections. Yet many in the arts community remain concerned that even for activities that are apparently authorized by the modified rule, the procedures and actual implementation remain uncertain. When antique objects of cultural and historic importance are at issue, many are understandably wary of placing those objects at risk of being detained or perhaps seized and destroyed. Critics find even the revised rule to be over-broad, jeopardizing
Large Chinese carved ivory covered vase (one of a pair)
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our understanding of the past by imposing current standards of behavior, effectively editing the past to suit contemporary tastes. Amid this storm over the new rule, it is important to clarify what activities are permitted under the current rule and what activities are forbidden. In U.S. domestic law, the protections and obligations with respect to ivory that have been promulgated under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) are implemented through the Endangered Species Act (“ESA”) and the African Elephant Conservation Act (“AECA”). The Lacey Act provides for both civil and criminal penalties for trade in wildlife that has been taken in violation of any state or foreign wildlife law or regulation. The Antique Exception Previously, import, export, transfer, and sale of objects containing African elephant ivory that were at least 100 years old was permitted as a discretionary exception to the broad ban on ivory under the ESA, AECA, and CITES. This has changed dramatically. The rule allows qualified antiques to be imported for noncommercial 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.