Elephant Ivory in Hawaii
Updated: 15 August 2015
Applicable laws:
- Hawaii Ivory Law of 2016: www.capitol.hawaii.gov/session2016/bills/SB2647_HD2_.htm
- Endangered Species Act (ESA) of 1973
- Code of Federal Regulations (CFR) Title 50, Chapter I, Subchapter B, Part 23
Other Federal Documents:
- Executive Order 13648 :: 5 July 2013
- USFWS Director’s Order 210 :: 25 February 2014, as amended 15 May 15 and 31 July 2015
- National Strategy for Combating Wildlife Trafficking :: February 2014
- U.S. Fish & Wildlife Service - Ivory Ban Questions and Answers
- U.S. Fish & Wildlife Service - Walrus Ivory Do's and Don'ts
International Treaty Basis for Currently Listed Endangered Species:
Quick Summary:
- The Endangered Species act and the CITES treaty (which the U.S. is party to) are the basis for controlling the import, export and re-export of certain items including elephant ivory.
- The Hawaii State Legislature passed Senate Bill 2647 and Governor Ige signed it into law on June 24th, 2016. Its enforcement date will be June 30, 2017. See the below summary for how this will impact jewelers and antique dealers in Hawaii.
- Nothing in current Federal law prohibits the possession or intra-state sale of legally acquired ivory. Some States (including Hawaii) have, or are considering, enacting laws which may be more restrictive than Federal law.
- The Endangered Species Act calls for the enforcement via the Secretary of the Interior, whose enforcement arm is the U.S. Fish and Wildlife Service (USFWS or FWS).
- Legally Acquired ivory is dentin from species listed by CITES which was:
- Acquired or imported prior to the application regulations/listing
- Or imported with a CITES permit (or a Federal permit)
- Current Federal laws only allow interstate sales of post-ban ivory with accompanying paperwork (generally a CITES permit).
- Executive Order 13648 does NOT state that ivory sales or possession are thereby illegal (this is a popular misconception). It instructs the USFWS to strictly enforce existing laws and calls for creating a national strategy.
- The President has issued a National Strategy For Combating Wildlife Trafficking. It is a policy statement and does not have the force of law nor does it call for specific changes to current regulations.
- The Directors Order 210 informs the USFWS as to enforcement of existing laws. It is not a law in and of itself. It only has applicability within the context of the USFWS’ mission to enforce the import/export/re-export provisions of CITES and the ESA.
- Items of similar appearance to ivory are mentioned in the Endangered Species Act :
SIMILARITY OF APPEARANCE CASES.—The Secretary may, by regulation of commerce or taking, and to the extent he deems advisable, treat any species as an endangered species or threatened species even though it is not listed pursuant to section 4 of this Act if he finds that—
Such species so closely resembles in appearance, at the point in question, a species which has been listed pursuant to such section that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species; the effect of this substantial difficulty is an additional threat to an endangered or threatened species; and such treatment of an unlisted species will substantially facilitate the enforcement and further the policy of this Act.
- While it is legal to import trophy ivory (from authorized safaris) if done in accordance with CITES regulations, trophy ivory is always non-commercial and must remain so. Meaning, the buying and selling of post-ban trophy ivory is not legal even if the ivory was imported with a CITES permit.
Summary of Hawaii's Ivory Law:
- The law: www.capitol.hawaii.gov/session2016/bills/SB2647_HD2_.htm
- Senate Bill 2647 passed the Hawaii Legislature and was signed into law on June 24, 2016.
- The enforcement provisions of this new law start on June 30, 2017.
- NOTE: The law does not distinguish between pre-ban (generally before 1975) and post-ban ivory. Unless an item is covered by a specific exemption (see below), all ivory items without CITES permits are assumed to be subject to this new law.
- No person shall sell, offer to sell, purchase, trade, possess with intent to sell, or barter for any part or product from the following animal family, genus, or species: Elephant, Rhinoceros,Tiger, Great Apes, Hippopotamus, Lion, Pangolin, Cheetah, Jaguar or Leopard.
- Unless otherwise authorized by federal law including the Marine Mammal Protection Act, 16 United States Code, chapter 31, no person shall sell, offer to sell, purchase, trade, possess with intent to sell, or barter for any part or product from the following marine family, genus, or species: Sea Turtle, Monk Seal, Narwhal, Whale or Walrus.
- Unless otherwise authorized by federal law including the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. section 1851 et seq.) as amended, no person shall sell, offer to sell, purchase, trade, possess with intent to sell, or barter for any part or product from: Rays and Sharks insofar as the species is listed on appendix I of the Convention on International Trade in Endangered Species or as endangered or threatened under the Endangered Species Act.
- No person shall sell, offer to sell, purchase, trade, possess with intent to sell, or barter for any part or product from Mammoth, although the species is extinct.
- NOTE: Mastodon is not mentioned in the Hawaii Law.
- Antique Exemption: The covered animal species part or product is part of a bona fide antique; provided that the antique status of such a part or product is established by the owner or seller thereof with historical documentation showing the antique to be not less than one hundred years old and the covered animal species part or product is less than twenty per cent by volume of such an antique and the covered animal species part or product is a fixed component or components of a larger manufactured item and is not, in its current form, the primary source of value of the item.
- Permitted Distribution: For a bona fide educational or scientific purpose or to or from a museum.
- NOTE: The Permitted Distribution allows for "gifting" of covered items to museums or educational organizations (but not sale).
- Inheritance Exemption: The distribution of the covered animal species part or product is to a legal beneficiary of an estate, trust, or other inheritance.
- NOTE: Outside of the Inheritance Exemption, the law is unclear regarding gifting of covered items without compensation or exchange (sale, barter, etc.).
- Gun, Knife and Musical Instrument Exemption: The covered animal species part or product is less than twenty per cent by volume of a gun, knife, or musical instrument, including without limitation string instruments and bows, wind and percussion instruments, and pianos, if the owner or seller provides historical documentation showing the item was manufactured no later than 1975 and the covered animal species part or product is a fixed component or components of a larger manufactured item and is not, in its current form, the primary source of value of the item.
- Exempted when allowed by Federal Law: The sale, offer for sale, purchase, trade, possess with intent to sell or barter of the covered animal species part or product is expressly authorized by federal law or permit.
- NOTE: The Exemption by Federal Law is primarily for items covered by CITES permits and not otherwise restricted by Federal Law.
- Presumption of Intent to Sell: There is established a rebuttable presumption of possession with intent to sell a covered animal species part or product when the part or product is possessed by a retail or wholesale establishment or other forum engaged in the business of buying or selling similar items.
- NOTE: The Presumption of Intent to Sell (Section 2, §183D.f) means that displaying a covered item in a retail store implies intent to sell. The "item not for sale" argument is presumed to be invalid.
- Recommendation: Prior to June 30, 2017, sell off existing stock of legal ivory (and other covered items) which do not have CITES permits. Do not acquire new legal ivory items unless you are prepared to hold them as personal property and never sell them after June 29, 2017 unless you have a CITES permit.
- This guide is for information purposes only. It has not been reviewed by an attorney and should not be used as the basis for legal guidance.
-- Mark L. Carson
