New York Announces Rules on Ivory Trade

By Michael McCullough            DECEMBER 4, 2014

New York- The New York State Department of Environmental Protection (DEC) issued guidance  today on the implementation of New York’s Ivory Law that was passed in August. The guidance includes Frequently Asked Questions that were negotiated between the DEC and our firm.

The New York Ivory law applies to intrastate and interstate commercial transactions in different ways:

Intrastate:

The New York State law bans intrastate sale, offer for sale, purchase, trade, barter or distribution of any ivory article or rhinoceros horn, unless one of the exceptions apply and a DEC permit is issued. For commercial sales, the object containing ivory, mammoth or rhinoceros horn must be at least 100 years old and contain less than 20% of the regulated material.  Intrastate sales are defined as those conducted wholly within New York State.  This includes sales where the seller and purchaser are located in New York State, such as an in-person retail sale at a commercial establishment.

Interstate:

Federal law prohibits the import, export and interstate sale (sale across state lines) of species listed in the Endangered Species Act, or their parts, without a Federal ESA permit.  However, Federal law also creates a specific exception for items that qualify as “antique.”   Therefore, the New York law, in concert with Federal law, limits the interstate sale, offer for sale, purchase, or distribution of any ivory article or rhinoceros horn to an ivory article or rhinoceros horn that has a Federal ESA Permit or:

• is 100 years or older;

• is composed in whole or in part of an ESA-listed species; and

• has not been repaired or modified with any such species after December 27, 1973.

As a general rule, the 20% rule does not apply to interstate sales. However, other in-state activities, such as exhibition or offering for sale, might invoke the 20% restriction.

Interstate sales are defined as any sale, offer for sale, purchase or distribution of an ivory article or rhinoceros horn conducted in part within New York State and in part in another state or foreign country.  Interstate transactions include those where legal transfer of the article occurs in another state, or where the purchaser or seller is in another state.

Interstate sale, offer for sale, purchase or distribution of an ivory article or rhinoceros horn in or from New York State requires a DEC permit.

Mammoth Ivory is treated in a similar way. Mammoth is an extinct species not regulated under the Federal Endangered Species Act.  However, New York has determined that effective enforcement efforts require that elephant ivory and mammoth ivory be treated identically.  Therefore, interstate sale, offer for sale, purchase or distribution of mammoth ivory is permissible under similar conditions as elephant ivory. However, in order to treat individuals who own mammoth ivory equitably, the Governor proposed legislation which the Legislature has introduced that would provide a sell-through provision for individuals who possessed mammoth ivory on the effective date of the new law. In anticipation of the enactment of this legislation, DEC will use its enforcement discretion to allow any person who possessed mammoth ivory articles on August 12, 2014 to sell, offer for sale, trade, barter or distribute those articles until June 30, 2015, provided that the articles are accompanied by documentation sufficient to show that they are mammoth ivory and were obtained prior to August 12, 2014. This enforcement discretion does not apply to elephant ivory articles or rhinoceros horn.

Special rules apply to non-commercial transfers and museum purchases.

Pearlstein & McCullough LLP is hosting a seminar for clients on Monday, December 8, 2014 from 3-5pm to review these new rules. Space is limited to 35 participants. Clients wishing to attend should contact Chloe Henry-Jones at chenryjones@pmcounsel.com to secure a seat.

Posted in art law, Elephant Ivory, Endangered Species and tagged , , , , , .

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