What are the cumulative effects if all of these administrative actions are finalized?
Collection of ivory figurines destroyed
during Ivory Crush
Credit: Kate Miyamoto/USFWS
As outlined below, these administrative actions, if finalized, provide limited exceptions for activities that we believe would either benefit the conservation of elephants or that do not contribute to poaching and illegal trade. However, note that the burden of proof falls upon the person claiming the exception. Importers, exporters, and sellers should be prepared to provide documentation that exempts them from the prohibitions listed below. Similarly, buyers should ask for all documentation to be released along with the purchase of an antique or otherwise exempted elephant ivory item. ( ***This is a step-wise process and will take some time for all prohibitions to go into effect. Please refer to the table above-“What can I do with my African elephant ivory?” for a list of current prohibitions.)
If these administrative actions are finalized, the following activities will be prohibited or restricted as a matter of enforcement discretion:
- Import of African elephant ivory except for certain items and purposes where the ivory item will not be sold, including sport-hunted trophies, ivory for law enforcement and scientific purposes, specified worked ivory items such as musical instruments, items in museums and other exhibitions, and items that are part of a household move or inheritance.
- Commercial export of African elephant ivory except for bona fide antiques.
- Interstate sale (sale across state lines) of African elephant ivory except for bona fide antiques, or that which is accompanied by an ESA permit.
- Intrastate sale (sale within a state), of African elephant ivory except that which was lawfully imported prior to listing in CITES Appendix I (1990 for African elephant) and with no restrictions on its use after import or under a CITES pre-Convention certificate.
If these administrative actions are finalized, the following activities will be allowed or not restricted as a matter of enforcement discretion:
- Import, export, interstate and intrastate commerce of elephant ivory items that are documented to meet the strict criteria of the exceptions listed above.
- Import of up to two African elephant sport-hunted trophies per hunter per year.
- Possession of lawfully imported and acquired elephant ivory items.
What is the U.S. role in the illegal elephant ivory trade?
The United States is among the world’s largest consumers of wildlife, both legal and illegal. As with any black market trade, it is difficult to determine the exact market value or rank the U.S. role in comparison to other nations. However, we remain a significant ivory market, and we must continue to be vigilant in combating illegal ivory trade. By effectively controlling illegal ivory trade at home and assisting elephant range states and consumer countries around the world, we can have a significant impact on elephant conservation.
Our current laws and regulations focus on controlling import and export, while allowing some ivory trade within the United States. Ivory sold in the United States typically involves worked items such as carvings and components of larger finished products such as knife handles, billiard cues, and furniture. Ivory is sold in retail shops as well as through online sellers. Though there is trade in antiques and other legally acquired ivory imported prior to the 1989 AECA ivory import moratorium, we believe a substantial amount of elephant ivory is illegally imported and enters the domestic market. It is extremely difficult to differentiate legally acquired ivory from ivory derived from elephant poaching. Our criminal investigations and anti-smuggling efforts have clearly shown that legal ivory trade can serve as a cover for illegal trade. As just one example, Service and state officers seized more than two million dollars-worth of illegal elephant ivory from two New York City retail stores in 2012.
Why not impose a complete ban on all import, export and domestic sale?
Under current laws, we are not able to impose a complete elephant ivory ban. With regard to both Asian and African elephants, the Endangered Species Act explicitly exempts antiques from ESA prohibitions and allows certain activities with the issuance of an ESA permit. Also, the African Elephant Conservation Act only applies to import and export and does not address Asian elephant ivory. In addition, there are certain activities that would be precluded by a complete ban that we believe would benefit the conservation of elephants or that do not contribute to poaching and illegal trade. Among these are the movement of ivory for law enforcement purposes and bona fide scientific purposes and the noncommercial movement of certain items, such as museum specimens and musical instruments containing CITES pre-Convention or antique ivory. Precluding such items would not benefit elephant conservation. However, we believe that the administrative actions available to us would result in a near complete ban and provide us with sufficient tools to ensure that the United States is not contributing to the poaching and illegal trade crisis.
Why do you allow the import of elephant sport-hunted trophies at all? What about other species?
The AECA, ESA and CITES allow the non-commercial import of sport-hunted trophies as long as certain conditions are met. We believe that well-regulated and managed sport hunting can contribute to conservation by putting much needed revenue back into protected area management, anti-poaching and other important conservation activities. We will propose to restrict elephant trophy imports to two elephants per hunter per year, similar to existing restrictions on import of leopard and markhor trophies. In addition, we will continue to closely monitor sport-hunting of elephants and other species to ensure that it does not threaten wild populations. Where necessary, we will increase restrictions or prohibit imports from at-risk populations altogether.
What other types of ivory are used, and how will they be affected by these actions?
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. See the section about antiques for more information.
How can I tell the difference between elephant ivory and other types of ivory?
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.
How does prohibiting commercial use of antiques and other old ivory help elephant populations in Africa?
Illegal ivory trade is driving a dramatic increase in African elephant poaching, threatening the very existence of this species. It is extremely difficult to differentiate legally acquired ivory, such as ivory imported in the 1970s, from ivory derived from elephant poaching. Our criminal investigations and anti-smuggling efforts have shown clearly that legal ivory trade can serve as a cover for illegal trade. By significantly restricting ivory trade in the United States, it will be more difficult to launder illegal ivory into the market and thus reduce the threat of poaching to imperiled elephant populations.
What are the penalties for violating the ESA?
The maximum penalty for violating the ESA is one year in prison and a $100,000 fine for an individual, $200,000 for an organization. Those who engage in illegal wildlife trade under the ESA may also face prosecution under the Lacey Act's anti-trafficking provisions (maximum penalty of 5 years in prison and fines of $250,000 for an individual or $500,000 for an organization).
Is it illegal to create or submit false paperwork to claim that an item qualifies as antique under the ESA antique exception?
Confiscated Ivory Goods
Credit: Peter Maas CC BY-NC-ND 2.0
Yes. The Lacey Act makes it illegal to produce or submit any false record, account, label for, or false identification of wildlife being transported in interstate or international commerce (maximum penalty 5 years in prison and fines of $250,000 for an individual, $500,000 for an organization). Making false statements and using false documents violates 18 U.S.C. 1001 (maximum penalty of 5 years in prison and fines of $250,000 for an individual, $500,000 for an organization).
What is meant by the ESA antiques exception?
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:
- It is 100 years or older;
- It is composed in whole or in part of an ESA-listed species;
- It has not been repaired or modified with any such species after December 27, 1973; and
- 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, and items created in the United States and never imported must comply with elements A, B, and C above, but not element D.
For what purposes can an ESA permit be issued and what is the process?
For species listed as endangered, such as the Asian elephant, permits can be issued for scientific purposes, enhancement of propagation or survival, incidental taking or economic hardship. For species listed as threatened, such as the African elephant, permits can be issued for scientific purposes, enhancement of propagation or survival, economic hardship, zoological exhibition, educational purposes, incidental taking or other special purposes consistent with the purposes of the Act. For more information about permit application processes and requirements, visit our Permits page.
What is an endangered species antique port?
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.
What is a CITES pre-Convention certificate?
A CITES pre-Convention certificate can be issued for specimens that were taken from the wild before the species was listed under CITES. For the African elephant, the pre-Convention date is February 26, 1976. For questions on how to obtain a pre-Convention certificate, please contact email@example.com.
What documentation will be accepted to show that an item was imported prior to the species listing in CITES Appendix I?
The Service will accept any record or document that substantiates either the date of import (for example, a copy of the relevant Form 3-177 Declaration for Importation or Exportation of Fish or Wildlife or CITES export or re-export permit) or that demonstrates that the item was in the United States before the Appendix I listing date (for example, a datable photo of the owner with the item, a dated letter or other document referring to the item).
The Director’s Order refers to worked African elephant ivory that “was legally acquired prior to February 26, 1976.” What does that mean?
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.
Can I currently sell elephant ivory products within the United States?
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 United States (across state lines and within a state). Asian elephant ivory sold in interstate commerce within the United States must meet the strict criteria of the ESA antiques exception.
Antique piano with ivory keys
Credit: Colin Bewes CC BY-NC-SA 2.0
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.
Can I currently import antique items containing African elephant ivory for commercial purposes?
No. The Service no longer allows any commercial importation of African elephant ivory. This prohibition, which was originally established via the 1989 African Elephant Conservation Act (AECA) moratorium, applies even to items that qualify as antiques.
Why is the Service allowing limited imports for non-commercial purposes to continue, but restricting the commercial importation of antiques made from African elephant ivory?
The United States is a market for objects made from African elephant ivory, which drives increasing poaching of wild elephants. The Service has 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 the Service’s mission to help conserve African elephants and stop trafficking in African elephant ivory. The other limited exceptions allow movement into the United States 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 by smugglers to “cover” trafficking in newly poached ivory.
Musicians and musical instrument manufacturers
Can I import African elephant ivory as part of a musical instrument?
You may import worked African elephant ivory as part of a musical instrument provided that the ivory was legally acquired before February 26, 1976; the ivory has not been transferred from one person to another person in the pursuit of financial gain or profit after February 25, 2014; the person or group qualifies for a CITES musical instrument certificate; and the musical instrument containing elephant ivory is accompanied by a valid CITES musical instrument certificate or an equivalent CITES document that meets the requirements of CITES Resolution Conf. 16.8. Raw African elephant ivory cannot be imported as part of a musical instrument.
If all of the proposed actions are finalized, will I be able to travel internationally with a musical instrument containing elephant ivory?
Orchestras, professional musicians and similar entities will be allowed to import and export certain musical instruments containing African elephant ivory under specific conditions. Worked African elephant ivory imported as part of a musical instrument will continue to be allowed provided the worked ivory was legally acquired prior to February 26, 1976; the worked elephant 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 musical instrument passport or CITES traveling exhibition certificate.
Can I purchase a musical instrument containing African elephant ivory from another country and have it shipped to me?
No. Commercial import of musical instruments containing African elephant ivory is prohibited.
Can ivory be imported to manufacture new musical instruments?
No. Commercial import of African elephant ivory is prohibited.
Museums and educational institutions
How can worked African elephant ivory be imported as part of a traveling exhibition?
Worked African elephant ivory may be imported as part of a traveling exhibition, such as a museum or art show, provided that the ivory was legally acquired prior to February 26, 1976; the worked elephant ivory has not been transferred from one person to another in the pursuit of financial gain or profit after February 25, 2014; the person or group qualifies for a CITES traveling exhibition certificate; and the item containing elephant ivory is accompanied by a valid CITES traveling exhibition certificate or an equivalent CITES document that meets the requirements of CITES Resolution Conf. 16.8. Raw African elephant ivory cannot be imported as part of a traveling exhibition.
Owners of elephant Ivory
Is ownership and use of personally owned elephant ivory items affected?
Chinese ivory carving
Credit: Rob Young CC BY 2.0
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.
Import and export of Asian elephant ivory is allowed for non-commercial purposes either with an ESA permit or if the specimen qualifies as pre-ESA or as an antique under the ESA.
How can African elephant ivory be imported for personal use?
You may only import worked African elephant ivory for personal use as part of a household move or inheritance or as a musical instrument provided that the ivory was legally acquired before February 26, 1976; the 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 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) pre-Convention certificate. Worked elephant ivory can also be imported as part of a sport-hunted trophy, if all other requirements for sport-hunted trophies are met.
Raw African elephant ivory can only be imported as part of a sport-hunted trophy.
How will movement of sport-hunted trophies be affected?
These administrative actions will not significantly impact the import into the United States of African elephant sport-hunted trophies. The AECA specifically allows such imports. We will propose to limit imports to two African elephant trophies per hunter per year. This limitation will affect very few importers.
Zoos, circuses, and exhibitors
How will the movement of live African elephants be affected?
The current special (4d) rule under the ESA allows the import or export of live African elephants provided all CITES requirements are met. Interstate or foreign commerce of live African elephants is also allowed, and no ESA permit is required.