U.S. Ivory Laws

I was planning on posting about the Brexit, but I am getting tired of hearing about it. Eventually the markets will adjust, both financial and art.

The Antiques Trade Gazette had two interesting article on ivory sales in the U.S., one on contractictory state and federal laws and a "what you need to know" article on ivory and the new regualtions which are effective July 6th.

The ATG reports
The ‘final rule’ of the US law on African elephant ivory, due to come into force on July 6, puts state and federal laws in contradiction, says a leading specialist.

Subtle differences have been identified between the new law as written in the Federal Register and the provisional laws that have been in effect since 2014.

While the July 6 statute provides only narrow exceptions for objects more than 100 years old – and demands for paperwork remain a major issue – it permits both intrastate commerce and the trade across state lines of newer objects that contain only a small amount of worked ivory.

New York dealer Scott Defri, of the European Decorative Arts Company in New York, spokesman for Art and Antique Dealers League of America on the ivory issue, says he was surprised to see the ‘final rule’ explicitly permit intrastate commerce (sales within a state).

He said this “potentially presents a major conflict with the legislation passed by states such as New York, New Jersey and California under the Supremacy Clause of the Constitution. This says that federal laws constitute the supreme law of the land and take precedence over any conflicting issues of law passed on a state level”.

Defrin, a specialist in European ivory carvings from the 17th to the 19th centuries, believes state and federal laws are now effectively in contradiction. He says the ongoing case in California – a test of whether state laws can be used to tackle an issue focused way beyond its borders – is key.

“If that law is overturned then others could fall,” he says.

Key Exceptions

Another unexpected addition to the ivory law is the so-called de minimis exception that allows the trade within the US of items of less than 100 years old where ivory forms only part of a larger object. This potentially would allow the sale of many pieces from the Art Deco period such as bronze and ivory figures or ivory inlaid furniture.

Nonetheless, the need to demonstrate, via a CITEs permit, that ivory of any age was legally imported into the US remains highly problematic. Defrin says nine out of ten items have no paperwork and have become ‘orphans’.

 “Even though the antiques exemption is still in place, the burden on the owner to prove that the object has been in the US since before 1982, or legally imported thereafter with a CITES permit, will in most cases be an insurmountable hurdle for most individuals, thus rendering most antiques valueless as a result.”

This aspect of the law is being challenged by an act introduced to Congress in July 2015.
Source: The Antiques Trade Gazette

What you need to know about ivory from the ARG
.The ‘final rule’ of the US law on African elephant ivory is due to come into force on July 6. Here ATG’s lists the key points of the legislation including where exemptions apply.

Imports to the US

The moratorium on commercial imports of any African elephant ivory regardless of age, effective since 2014, continues. The law does permit non-commercial imports of antique ivory when the item is part of a household move or inheritance, part of a musical instrument or part of a travelling museum exhibition.

Exports from the US

The US Fish & Wildlife Service are more flexible when ivory is leaving their borders and potentially this aspect of the law will allow Americans to sell their collections overseas.

Commercial exports of worked ivory that meet the criteria of the antiques exemption (at least 100 years old and demonstrably imported prior to September 22, 1982) are permitted when accompanied by appropriate CITES documents.

Non-commercial exports of ivory worked prior to 1976 are also allowed.

Sales within a State (intrastate commerce)

The federal law allows for intrastate commerce in ivory that was demonstrably imported prior to January 1990 (the date the African elephant was listed in CITES Appendix I).

Sales across State lines (interstate commerce)

The rules restrict interstate commerce to only items that meet the antiques exemption but permits the trade of more recent objects that contain a small (de minimis) amount of ivory. Art Deco bronze and ivory figures, such as the example by Theodor Ullmann sold by Sworders for £6200 in February, may qualify under the ‘de minimis’ exemption.

The ‘de minimis’ exemption

There is an exemption for items that contain a small (de minimis) amount of worked ivory.

The ivory (imported prior to 1990) must be a fixed or integral component of a larger item and weigh less than 200g. According to the guidance notes this will permit the sale of many of the following kinds of items: musical instruments (including pianos); knives with ivory hilts and guns with ivory grips; teapots with ivory insulators, walking canes with ivory handles, and inlaid furniture.

The authorities will not require ivory components to be removed and weighed. However they must account for less than 50% of the volume of the object. Small items made wholly of ivory, e.g. chess pieces or jewellery with metal fittings, would not qualify for the de minimis exception.

Burden of proof

Anyone claiming the benefit of the antiques exemption has the burden of demonstrating that the item is not less than 100 years old. Statements from a dealer or collector or a CITES pre-Convention certificate alone, will not be considered adequate proof.

However, the USFWS have clarified that forensic testing is not necessarily required. Provenance and age may be determined through a detailed history of the item, a third party appraisal from a professional or by “using information in catalogues, price lists, and other similar materials”.

Marine ivory

The rule regulates only African elephant ivory. Asian elephants are subject to different laws as is ivory from marine species, such as walrus, narwhal and sperm whale. Ivory from extinct species, such as mammoths, is not regulated by the USFWS.

Source: The US Fish & Wildlife Service
Source: The Antiques Trade Gazette 

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