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Ivory has been used for piano keys, jewelry items, veneers, figurines, pool balls, cue sticks, door handles, buttons and a myriad of other items.

And, auctioneers somewhat frequently discuss what is legal and illegal concerning the selling of ivory … and like items.

Like items? In addition to elephant ivory: whale, walrus, mammoth and a variety of related scrimshaw items are usually included in this discussion.

New laws took effect regarding ivory on July 6, 2016, and court challenges have largely subsided. Thus, this is an update to our analysis from 2012: https://mikebrandlyauctioneer.wordpress.com/2012/11/16/auctioneers-and-ivory/

The overriding laws which regulate ivory is promulgated by the Convention on the International Trade in Endangered Species (CITES). CITES was formed in 1973, and is now known as the Convention on International Trade in Endangered Species of Wild Fauna and Flora. CITES regulates control over international trade, and does not regulate any country’s internal commerce.

In 1975, CITES ruled to prevent the international trading of Asian elephant ivory; likewise for African elephant ivory in 1990. Such rulings are periodically reviewed, depending on current populations. Occasionally thus far, some stockpiled ivory which has been harvested pre-ban has been permitted on the international market.

Here are the general laws for auctioneers in the United States today regarding Asian and African ivory, including references from the U.S. Fish & Wildlife Service:

Asian elephant ivory:

    Intrastate sales …
    Under Federal law, you can sell your Asian elephant ivory within your state (intrastate commerce) if you can demonstrate that your ivory was lawfully imported prior to the date that the Asian elephant was listed in CITES Appendix I (July 1, 1975). This documentation could be in the form of a CITES pre-Convention certificate, a datable photo, a dated letter or other document referring to the item, or other evidence.
    You do not need to obtain a permit from the Service for sales within a state. However, if you are offering Asian elephant ivory for sale, you should be prepared to provide appropriate documentation to the Service, if asked. We would also suggest that you pass along all documentation to the buyer of your elephant ivory items.
    Some states have laws prohibiting or restricting sale of ivory. Check to make sure that you are also in compliance with local and state laws. Contact the state to check on their requirements.
    Interstate sales …
    The sale of Asian elephant ivory across state lines is prohibited except for items that qualify as ESA antiques. To qualify for the ESA antiques exemption, an item must meet all of the following criteria [seller/importer/exporter must demonstrate]:
      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 No. 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.
    *U.S. Customs and Border Protection (CBP) designated 13 ports for the entry of antiques made of ESA-listed species on September 22, 1982 (19 C.F.R. 12.26). The following ports are authorized: 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.
    For items made of Asian elephant ivory that qualify as an ESA antique, you do not need a permit from the Service to sell ivory across state lines. However, if you are offering Asian elephant ivory for sale, you should be prepared to provide appropriate documentation to the Service, if asked. We would also suggest that you pass along all documentation to the buyer of your elephant ivory items. For detailed information on documentation requirements, please refer to Appendix 1 of Director’s Order 210.
    Some states have laws prohibiting or restricting sale of ivory. Check to make sure that you are also in compliance with local and state laws. Contact the state to check on their requirements.

African elephant ivory:

    Intrastate sales …
    Under Federal law, you can sell your African elephant ivory within your state (intrastate commerce) if you can demonstrate that your ivory was lawfully imported prior to the date that the African elephant was listed in CITES Appendix I (January 18, 1990). This documentation could be in the form of a CITES pre-Convention certificate, a datable photo, a dated letter or other document referring to the item, or other evidence.
    You do not need to obtain a permit from the Service for sales within a state. However, if you are offering African elephant ivory for sale, you should be prepared to provide appropriate documentation to the Service, if asked. We would also suggest that you pass along all documentation to the buyer of your elephant ivory items.
    Some states have laws prohibiting or restricting sale of ivory. Check to make sure that you are also in compliance with local and state laws. Contact the state to check on their requirements.
    Interstate sales …
    The sale of African elephant ivory items across state lines (interstate commerce) is prohibited, except for items that qualify as ESA antiques and certain manufactured or handcrafted items that contain a small (de minimis) amount of ivory and meet specific criteria.
    Interstate commerce is always prohibited for the following:
    – sport-hunted trophies
    – items imported under the exception for a household move or inheritance
    – items imported as law enforcement or scientific specimens
    To qualify for the ESA antiques exemption, an item must meet all of the following criteria [seller/importer/exporter must demonstrate]:
      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 No. 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. To qualify for the de minimis exception, manufactured or handcrafted items must meet (i) or (ii) and (iii) – (vii) of the following criteria:

      (i) If the item is located within the United States, the ivory was imported into the United States prior to January 18, 1990, or was imported into the United States under a Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) pre-Convention certificate with no limitation on its commercial use;
      (ii) If the item is located outside the United States, the ivory was removed from the wild prior to February 26, 1976;
      (iii) The ivory is a fixed or integral component or components of a larger manufactured or handcrafted item and is not in its current form the primary source of the value of the item, that is, the ivory does not account for more than 50 % of the value of the item;
      (iv) The ivory is not raw;
      (v) The manufactured or handcrafted item is not made wholly or primarily of ivory, that is, the ivory component or components do not account for more than 50 % of the item by volume;
      (vi) The total weight of the ivory component or components is less than 200 grams; and
      (vii) The item was manufactured or handcrafted before July 6, 2016.
    For items made of African elephant ivory that qualify as an ESA antique or meet the de minimis criteria, you do not need a permit from the Service to sell ivory across state lines. However, if you are offering African elephant ivory for sale, you should be prepared to provide appropriate documentation to the Service, if asked. We would also suggest that you pass along all documentation to the buyer of your elephant ivory items. For detailed information on documentation requirements, please refer to Director’s Order 210.
    Some states have laws prohibiting or restricting sale of ivory. Check to make sure that you are also in compliance with local and state laws. Contact the state to check on their requirements.

Currently, at the federal level:

  • The importation of sperm whale teeth for commercial purposes is prohibited, as of 1973.
  • A special federal permit is required to sell “registered” sperm whale teeth across state lines.
  • No further sperm whale teeth are being registered, and therefore those teeth can only be sold to a buyer within the same state.
  • Antique ivory whales teeth (1873 and prior) can be sold interstate.
  • Ancient (extinct) mammoth or mastodon animal ivory can be sold without restriction.

In addition, each state has a department dealing with fish, wildlife and/or game, charged with regulating wildlife product commerce. Before any such property is sold at auction, those officials in the applicable state(s) should be checked for additional laws.

However, possibly the more important issue is … does the item’s value (and associated commission) justify the research and risk involved for an auctioneer? For instance, one could argue that a $100-$125 ivory statue that may (or may not) be legal to sell would be best to avoid.

And further, even if the item is more valuable, how does an auctioneer determine if the ivory is Asian or African? When was it imported? Is the item 98 years old, or 103 years old? When ivory items reach important values, how does an auctioneer reasonably proceed with the auction?

Documentation.

Paperwork regarding the item including prior appraisals and/or bills of sale indicating country of origin, identification as Asian or African ivory, raw or worked, age, and year of importation can all help to prove to any interested authority that the item is legal to sell at auction, and to whom (and to where) the item can be sold.

Ivory has been highly marketable for thousands of years. Only recently has demand waned to some degree. Yet for auctioneers, knowing what is legal to sell, particularly if the item is of significant value, is important. With various international, federal and state resources available for research, prudent and informed decisions can be made about marketability.

Mike Brandly, Auctioneer, CAI, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College of Business, Executive Director of The Ohio Auction School, an Instructor at the National Auctioneers Association’s Designation Academy and Faculty at the Certified Auctioneers Institute held at Indiana University.