Earlier this year, in response to concerns that poaching of African elephants is rapidly driving the species to extinction, the U.S. federal government tightened restrictions on the import, export, transfer, and sale of African elephant ivory and rhinoceros horn.[1] The revised restrictions followed on President Obama’s July 2013 executive order committing the U.S. to increase its efforts to halt wildlife trafficking. As reportedby the Wildlife Conservation Center, “[t]here were an estimated 1.2 million African elephants in 1980, but now the population is down to less than 420,000. . . . For forest elephants, a separate species from the savannah elephant, the news is worse. Ten percent of the population was killed in 2012, and another 10 percent in 2013. . . . With fewer than 100,000 left, extinction could be only 10 years away.” Wildlife conservationists argue that a complete ban on the sale of ivory is necessary, and is the only way to stop poaching of elephants. Some have suggested that a complete ban on ivory actually facilitates further looting and an illicit ivory market, and have urged the creation of alimited, regulated, licit market in ivory.

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. The original version of the amended rule that was announced in February eliminated the antiques exception in all commercial contexts and substantially limited it in non-commercial contexts. New York and New Jersey have similarly tightened their existing restrictions on the trade in and transfer of ivoryCalifornia, Maine, and Hawaii are expected to follow suit

Response to this change was swift, and, from many sectors, strongly negative, questioning what the new rule would mean for the trade in art, antiques, musical instrumentsantique guns, and other objects either made of ivory or containing ivory elements. 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, to clarify and provide some protection for non-commercial cultural activities. Despite that modification, 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 our understanding of the past by imposing current standards of behavior, effectively editing the past to suit contemporary tastes. “It is wrong, and foolish, to project our scruples on to the past,” Jonathan Jones wrote in The Guardian. “There is no reason to abhor the wonderful masterpieces created by past generations with a technique we no longer ‘approve of,’ or to deny ourselves the pleasure of these artistic marvels. This is why American antiques dealers are right to demand clarification of current restrictions that seem to potentially ban the sale of bona fide historical objects.”

On July 10, companion bills were introduced in the Senate (S. 2587) and House of Representatives, (H.R. 5052), the “Lawful Ivory Protection Act of 2014”, which would prevent the new ivory rules from going into effect. The proposed bills would amend the Endangered Species Act (discussed below) to prohibit any regulation going into effect after Feb. 24, 2014 that would (i) prohibit or restrict the possession, sale, delivery, receipt, shipping, or transportation of elephant ivory that has been lawfully imported; (ii) change any methods of, or standards for, determining if ivory has been lawfully imported; or (iii) prohibit or restrict the importation or possession of ivory that was lawfully importable or possessable on that date.

Amid this storm over the new rule, it is important to attempt to clarify for collectors, museums, musicians and others what activities are permitted under the current rule and what activities are forbidden. Background to the Regulation of Ivory

Ivory regulation has long been complex, “arising from the intersection of federal statutory law, executive-branch orders, and the guidelines imposed by international conservation treaties. As animal populations fluctuate, so do the laws.” 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 (the ESA) (which lists both Asian and African elephants as endangered, and provides that artifacts carved of elephant ivory (“worked elephant ivory,” in contrast to unworked or “raw” ivory) may travel legally if accompanied by documentation proving that their provenance pre-dates the ESA) and the African Elephant Conservation Act (the AECA)(which broadly prohibits the import of raw or worked ivory). 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.

CITES attempts to eliminate the illegal trade in animals and plants, their parts, and associated products (including ivory), by means of a variety of mechanisms, including domestically-implemented trade bans and licensing regimes. The convention entered into force on July 1, 1975, and presently has 180 states parties. In 1989, CITES was amended to ban the sale of new ivory. Critics of the CITES ivory ban have pointed out that demand for new ivory remains strong in Asia, particularly China, and that the net effect of the ban has been to greatly increase the price poachers are able to obtain for illicit ivory.