Restrictions on Trade in Elephant Ivory
Brandon J. Murrill
Legislative Attorney
Daniel T. Shedd
Legislative Attorney
August 28, 2014
Congressional Research Service
7-5700
www.crs.gov
R43700

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Restrictions on Trade in Elephant Ivory

Summary
For decades, illegal trade in elephant ivory has threatened the viability of wild populations of the
Asian elephant (Elephas maximus) and the African elephant (Loxodonta africana). To reduce the
United States’ contribution to the demand for illegal elephant ivory, President Obama announced
in February 2014 that his Administration would “strengthen enforcement” of U.S. laws governing
the trade as part of his National Strategy for Combating Wildlife Trafficking. Shortly thereafter,
the Department of the Interior’s (DOI’s) Fish and Wildlife Service (FWS or Service) took
administrative actions designed to restrict trade in elephant ivory further while allowing some
trade that the agency does not believe would undermine elephant conservation efforts.
At the federal level, two statutes, the Endangered Species Act (ESA) and the African Elephant
Conservation Act (AECA), and an international treaty, the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES), potentially restrict the trade, possession,
and use of elephant ivory by persons subject to U.S. jurisdiction. In addition to the statutes that
regulate trade in ivory, FWS has promulgated or issued rules, orders, and policies that generally
dictate what persons subject to U.S. jurisdiction can do with elephant ivory.
This report briefly discusses the federal statutes and the treaty that govern international and
domestic trade in elephant ivory by persons subject to U.S. jurisdiction. It then provides an
overview of the President’s strategic plan to combat wildlife trafficking, as well as related
administrative actions by FWS. It examines the restrictions on trade in Asian and African
elephant ivory contained in federal laws, as well as FWS regulations and policies. It also explains
potential exceptions to these restrictions, including exceptions for antiques, certain musical
instruments, and ivory that is part of a household move. The report concludes with a brief
overview of legislation introduced in the 113th Congress and proposed administrative actions
addressing elephant ivory trade.

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Restrictions on Trade in Elephant Ivory

Contents
Introduction ...................................................................................................................................... 1
Convention on International Trade in Endangered Species of Wild Fauna and Flora ............... 1
Endangered Species Act ............................................................................................................ 3
General Prohibitions ............................................................................................................ 3
Implementation of CITES and Other Trade Provisions ...................................................... 4
Exception for Antiques ........................................................................................................ 5
Penalties .............................................................................................................................. 6
African Elephant Conservation Act ........................................................................................... 6
Recent Executive Branch Actions .................................................................................................... 8
Director’s Order No. 210 ........................................................................................................... 9
CITES Final Rule and Planned Future Regulations .................................................................. 9
Restrictions on Trade ..................................................................................................................... 10
General Requirements ............................................................................................................. 10
Asian Elephant Ivory ............................................................................................................... 10
African Elephant Ivory ............................................................................................................ 12
Import Restrictions ............................................................................................................ 12
Export Restrictions ............................................................................................................ 15
Domestic Trade ................................................................................................................. 15
Proposed Legislation in the 113th Congress and Planned FWS Regulations ................................. 16

Contacts
Author Contact Information........................................................................................................... 16

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Introduction
For decades, illegal trade in elephant ivory has threatened the viability of wild populations of the
Asian elephant (Elephas maximus) and the African elephant (Loxodonta africana).1 Illegal trade
in elephant ivory has doubled since 2007, with poachers killing about 35,000 elephants in 2012,
according to the U.S. Department of the Interior (DOI).2 To reduce the United States’ contribution
to the demand for illegal elephant ivory, President Obama announced in February 2014 that his
Administration would “strengthen enforcement” of U.S. laws governing the trade as part of his
National Strategy for Combating Wildlife Trafficking.3 Shortly thereafter, DOI’s Fish and Wildlife
Service (FWS or Service) took administrative actions designed to restrict further trade in elephant
ivory while allowing some trade that the agency does not believe would undermine elephant
conservation efforts.4 These actions included the issuance of Director’s Order No. 210 (Director’s
Order).5
This report briefly discusses the federal statutes and the treaty that govern international and
domestic trade in elephant ivory by persons subject to U.S. jurisdiction. It then provides an
overview of the President’s strategic plan to combat wildlife trafficking, as well as related
administrative actions by FWS. It examines the restrictions on trade in Asian and African
elephant ivory contained in federal laws, as well as FWS regulations and policies.6 The report
concludes with a brief overview of legislation in the 113th Congress and proposed administrative
actions addressing elephant ivory trade.
Convention on International Trade in Endangered Species of Wild
Fauna and Flora
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES
or Convention) is an agreement among 180 countries that establishes a permitting and certificate
system to protect wildlife and plant species from harm caused by illegal or unsustainable

1 U.S. Fish and Wildlife Service (FWS), Fact Sheet, U.S. Efforts to Control Illegal Elephant Ivory Trade and Internal
Markets (2012), available at http://www.fws.gov/international/pdf/factsheet-us-efforts-to-control-illegal-elephant-
ivory-trade.pdf.
2 DOI, News Release (Feb. 11, 2014), available at http://www.doi.gov/news/pressreleases/interior-announces-ban-on-
commercial-trade-of-ivory-as-part-of-overall-effort-to-combat-poaching-wildlife-trafficking.cfm.
3 Executive Office of the President, National Strategy for Combating Wildlife Trafficking 2-3 (Feb. 11, 2014),
available at http://www.whitehouse.gov/sites/default/files/docs/nationalstrategywildlifetrafficking.pdf.
4 FWS, What can I do with my African elephant ivory? (updated May 15, 2014),
http://www.fws.gov/international/travel-and-trade/ivory-ban-questions-and-answers.html.
5 FWS, Director’s Order No. 210 § 2(b) (Feb. 25, 2014), as amended (May 15, 2014) [hereinafter Order 210], available
at http://www.fws.gov/policy/do210.pdf. Order 210 was originally issued on February 25, 2014. To reduce confusion,
this memorandum will refer only to the amended version of the Director’s Order, as that is the version that is currently
operative. FWS provided a redline copy of the Director’s Order to show how the amendments changed the original
order; that document is available at http://www.fws.gov/policy/a1do210.pdf.
6 This report does not discuss trade in live elephants; the transit or transshipment of ivory through places subject to U.S.
jurisdiction; or trade in specimens from animals bred in captivity. It also does not examine whether actions by FWS
related to trade in ivory are consistent with the United States’ international obligations under the Convention on
International Trade in Endangered Species of Wild Fauna and Flora (CITES) or other international agreements.
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international trade in the species or their parts.7 Parties to CITES, including the United States,
have undertaken certain international obligations with respect to trade in specimens of species
listed in the CITES appendices.8 CITES strictly regulates trade in specimens of Appendix I
species because they are threatened with extinction.9 For these species, CITES generally requires
an export permit, showing that the animals, plants, or parts thereof were legally obtained and that
export will not be detrimental to the species’ survival; and an import permit, which includes a
statement that the specimen is not being used primarily for commercial purposes and that import
is not detrimental to the species’ survival.10
Appendix II species receive a medium level of protection because they could potentially become
endangered in the future in the absence of trade restrictions.11 Export of specimens of Appendix II
species generally requires a permit issued by the exporting country’s Management Authority after
a finding that the specimens were legally acquired and that export will not be detrimental to the
species’ survival.12 Finally, a Party to CITES may designate unilaterally a native species as an
Appendix III species if the Party requires the assistance of other CITES parties to control
international trade in that species.13 Export of an Appendix III species from a Party that has
included the species in Appendix III requires an export permit.14 CITES, as implemented by
FWS, also bans commercial use of a specimen after import in some circumstances.15
CITES contains a few exceptions to its permitting requirements that are particularly relevant to
trade in elephant ivory. For example, when a Party’s Management Authority (e.g., FWS) “is
satisfied” that a specimen was removed from the wild prior to its listing in a CITES appendix, the
core permitting provisions of CITES do not apply to that specimen, but the authority must issue a
pre-Convention certificate to accompany the export or re-export of the specimen.16 CITES also
contains exceptions for the import and export of certain personal or household effects;17 non-
commercial loan, donation, or exchange of certain specimens between scientists or registered

7 27 U.S.T. 108; CITES, Preamble; 50 C.F.R. § 23.1(b). CITES was signed by the United States on March 3, 1973;
ratified by the United States later that year; and entered into force on July 1, 1975. The text of the Convention is
available at http://www.cites.org/eng/disc/text.php.
8 CITES, Art. II. For the purposes of U.S. domestic law, CITES would not appear to be a self-executing treaty. See
CITES, Art. XIV (“The provisions of the present Convention shall in no way affect the provisions of any domestic
measures...”); 50 C.F.R. § 23.1(c) (“We, the U.S. Fish and Wildlife Service ... implement CITES through the
Endangered Species Act.”); United States v. One Etched Ivory Tusk of African Elephant, 871 F. Supp. 2d 128, 133
(2012) (“No provision of CITES indicates that the treaty is ‘self-executing.’”). Thus, CITES obligations become part of
U.S. law only when implemented by Congress or another appropriate domestic lawmaking or regulatory body acting
within the scope of its authority. As described below, Congress implemented CITES in part by amending the ESA to
ban persons subject to U.S. jurisdiction from engaging in the trade of specimens in violation of CITES or possessing
specimens previously traded contrary to CITES. 16 U.S.C. § 1538(c).
9 CITES, Art. II(1).
10 CITES, Art. III.
11 CITES, Art. II(2).
12 CITES, Art. IV. However, import of these specimens does not require a separate permit under CITES. See id.
13 CITES, Art. II(3).
14 CITES, Art. V. Import after export (but not re-export) may require presentation of an export permit or, if the
specimen originated in a country that did not list the species in Appendix III, a certificate of origin. Id.
15 See 50 C.F.R. § 23.55.
16 CITES, Art. VII(2); see also 50 C.F.R. § 23.45; Resolution Conf. 13.6 (Rev. CoP16), Implementation of Article VII,
Paragraph 2, Concerning “Pre-Convention” Specimens.
17 CITES, Art. VII(3).
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scientific institutions;18 import or export of pre-Convention specimens in traveling exhibitions;19
and musical instruments containing pre-Convention specimens that cross borders for personal use
or performance.20
Notably, CITES allows parties to the Convention to adopt “stricter domestic measures” governing
trade in specimens of species listed in the appendices.21 Thus, a person exporting or re-exporting
ivory from—or importing ivory into—the United States should consult with the Management
Authority of the foreign importing or exporting country to determine whether stricter measures
(e.g., additional permitting requirements) apply.22
Endangered Species Act
Congress enacted the Endangered Species Act (ESA)23 in 1973 (and later amended it) in an effort,
among other things, to conserve endangered or threatened species of wildlife and implement U.S.
international obligations under CITES and other treaties.24 The Act authorizes DOI and the
Department of Commerce to promulgate regulations listing certain species as “endangered”25 or
“threatened”26 after following certain procedures.27 FWS performs the listing function for DOI
under the ESA.
General Prohibitions
After FWS has listed a species (e.g., the Asian elephant) as “endangered,” the ESA prohibits any
person28 subject to U.S. jurisdiction from engaging in certain actions with respect to that species
unless the person can prove that an exception applies.29 These prohibited actions include the

18 CITES, Art. VII(6); 50 C.F.R. § 23.48.
19 CITES, Art. VII(7); 50 C.F.R. § 23.49.
20 See CITES, Resolution Conf. 16.8, Frequent Cross-border Non-commercial Movements of Musical Instruments.
21 CITES, Art. XIV(1). For example, a CITES party may choose not to recognize the personal and household effects
exemption. Resolution Conf. 13.7 (Rev. CoP16), Control of Trade in Personal and Household Effects; 50 C.F.R. §
23.15.
22 50 C.F.R. § 23.20(b); FWS, Fact Sheet, CITES Permits and Certificates (December 2012),
http://www.fws.gov/international/pdf/factsheet-cites-permits-and-certificates-2013.pdf. CITES also contains provisions
addressing trade with countries not party to the Convention or trade with states that have made a reservation with
respect to a particular species. CITES, Art. X; 50 C.F.R. §§ 23.21(d), 23.22(e), 23.25. Malawi has maintained a
reservation with respect to the African elephant since 1990. CITES, Reservations Entered by Parties,
http://www.cites.org/eng/app/reserve.php.
23 16 U.S.C. §§ 1531-1544.
24 16 U.S.C. § 1531(a)-(b).
25 Under the ESA, an “endangered species” is one which “is in danger of extinction throughout all or a significant
portion of its range.” 16 U.S.C. § 1532(6).
26 The ESA defines “threatened species” as “any species which is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20).
27 16 U.S.C. § 1533. One circumstance under which FWS may list a species is when the species is being overused for
commercial purposes. Id.
28 The ESA defines “person” as “an individual, corporation, partnership, trust, association, or any other private entity;
or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality,
or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a
State; or any other entity subject to the jurisdiction of the United States.” 16 U.S.C. § 1532(13).
29 16 U.S.C. §§ 1538(a)(1), 1539(g). For example, a person might demonstrate that FWS granted the person an ESA
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import30 into, or export from, the United States31 of the endangered species; the delivery, receipt,
or transport in interstate or foreign commerce of the species in the course of a “commercial
activity”;32 the sale or offer for sale in interstate or foreign commerce of the species; or the
violation of a regulation promulgated under the ESA pertaining to an endangered or threatened
species.33
With respect to “threatened species,” such as the African elephant, which are considered to be at
less risk of extinction than endangered species, the ESA authorizes DOI to promulgate regulations
to protect that species.34 Such regulations may prohibit any act that is prohibited for endangered
species under 16 U.S.C. § 1538(a)(1).35 The Service has promulgated a regulation entitled
“Special rules—mammals” that contains, in part, some restrictions with respect to trade in
African elephant ivory.36
Implementation of CITES and Other Trade Provisions
The ESA also serves as the United States’ implementing legislation for CITES.37 The Act
designates DOI as the Management and Scientific authorities under CITES and directs the agency
to take all actions “necessary and appropriate” to perform the functions of these authorities under
the Convention.38 The Act also prohibits persons subject to U.S. jurisdiction from engaging in the

(...continued)
permit. 16 U.S.C. § 1539(a)(1)(A). Generally, FWS may grant a permit for endangered species for “scientific purposes
or to enhance the propagation or survival of the affected species.” Id. Approval by FWS of a permit may be conditioned
on the holder adhering to certain conditions. Id. § 1539(a). There is also a possible exception for bona fide antiques. 16
U.S.C. § 1539(h). These exceptions are discussed further below.
30 Under the ESA, “import” means “to land on, bring into, or introduce into, or attempt to land on, bring into, or
introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or
introduction constitutes an importation within the meaning of the customs laws of the United States.” 16 U.S.C. §
1532(10).
31 The ESA generally defines “United States” as “any of the several States, the District of Columbia, the
Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, and the Trust Territory of the Pacific
Islands.” 16 U.S.C. § 1532(17), (21).
32 The ESA defines “commercial activity” as “all activities of industry and trade, including, but not limited to, the
buying or selling of commodities and activities conducted for the purpose of facilitating such buying and selling:
Provided, however, That it does not include exhibition of commodities by museums or similar cultural or historical
organizations.” 16 U.S.C. § 1532(2).
33 16 U.S.C. § 1538(a); 50 C.F.R. § 17.21(a)-(b), (e)-(f). The prohibitions on the import and export of endangered
species, as well as the violation of rules promulgated under the ESA pertaining to species listed as endangered or
threatened, do not apply when wildlife “was held in captivity or in a controlled environment” on (1) December 28,
1973 (the date of the enactment of the ESA); or (2) the date of publication in the Federal Register of a final rule listing
a species as endangered or threatened when the holding or subsequent holding or use of the species was not done in the
course of a commercial activity.” 16 U.S.C. § 1538(b). If the import, export, or rule violation occurred more than 180
days after the passage of the ESA or the listing of the species as endangered or threatened, there is a rebuttable
presumption that the “wildlife involved in such act is not entitled to the exemption.” Id.
34 16 U.S.C. § 1533(d).
35 Id.
36 The current version of the rule is located at 50 C.F.R. § 17.40(e). It is commonly referred to as a “special rule.”
37 16 U.S.C. § 1537a.
38 16 U.S.C. § 1537a(a). Offices within FWS perform the functions of these authorities. 16 U.S.C. § 1537a(a). In
addition, the ESA authorizes DOI, the Secretary of the Treasury, and the Secretary of the Department of Homeland
Security to promulgate “such regulations as may be appropriate to enforce” the ESA. 16 U.S.C. § 1540(f).
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“trade”39 of “specimens”40 in violation of CITES or possessing specimens previously traded
contrary to CITES.41
Persons “in the business of” importing wildlife into, or exporting it from, the United States must
also obtain authorization from FWS to engage in these activities, including with respect to “raw
or worked African elephant ivory,” and must follow certain recordkeeping, inspection, and
reporting requirements.42 Persons subject to U.S. jurisdiction may import or export wildlife only
at certain designated U.S. ports unless DOI grants an exemption.43
Exception for Antiques
Under 16 U.S.C. § 1539(h), prohibitions applying to endangered species (16 U.S.C. § 1538(a));
threatened species (16 U.S.C. § 1533(d)); and trade undertaken in violation of CITES (16 U.S.C.
§ 1538(c)) do not apply when the article is an “antique” under the ESA.44 In order to qualify as an
antique, an item must:
A) Not be less than 100 years old;
B) Be composed in whole or in part of any endangered species or threatened species listed
under the ESA (16 U.S.C. § 1533);
C) Have not been repaired or modified with any part of any such species on or after
December 28, 1973 (the date of enactment of the ESA); and
D) Enter at a port designated for the import of ESA antiques.45
As noted below, the FWS Director’s Order announced FWS’s plan to enforce these requirements
strictly.46 However, FWS notes that items imported into the United States prior to the

39 The ESA incorporates the definition of “trade” contained in Article I of CITES, which is “export, re-export, import
and introduction from the sea.” CITES, Art. I(c). “Re-export” refers to “export of any specimen that has previously
been imported.” CITES, Art. I(d).
40 The ESA incorporates the definition of “specimen” from Article I of CITES, which, in relevant part, refers to any
animal, whether dead or alive, as well as any readily recognizable part or derivative of such animal if its species is
included in CITES appendices I or II—or a part or derivative of the species is specified in Appendix III. CITES, Art.
I(b).
41 16 U.S.C. § 1538(c); 50 C.F.R. § 23.13(a), (c).
42 16 U.S.C. § 1538(d)-(e). FWS regulations state that to “engage in business means to import or export wildlife for
commercial purposes.” 50 C.F.R. § 14.91. The regulations define “commercial” as “related to the offering for sale or
resale, purchase, trade, barter, or the actual or intended transfer in the pursuit of gain or profit, of any item of wildlife
and includes the use of any wildlife article as an exhibit for the purpose of soliciting sales, without regard to quantity or
weight. There is a presumption that eight or more similar unused items are for commercial use. The Service or the
importer/exporter/owner may rebut this presumption based upon the particular facts and circumstances of each case.”
50 C.F.R. § 14.4.
43 16 U.S.C. § 1538(f).
44 16 U.S.C. § 1539(h).
45 16 U.S.C. § 1539(h)(1). Ports of entry for antiques made of ESA-listed species are 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. 19 C.F.R. § 12.26(g)(2).
46 Order 210 § 2(b).
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establishment of a designated ESA antique port (established on September 22, 1982) and items
that were created inside the United States, and were therefore never imported, only have to satisfy
the first three of the above listed criteria.47
A person claiming the exception has the “burden of proving that the exemption ... is applicable,
has been granted, and was valid and in force at the time of the alleged violation.”48 This generally
requires the person to document the species and age of the specimen to show that it qualifies for
the exception.49 According to FWS, at least for an import, “qualified appraisal, documents that
provide detailed provenance, and/or scientific testing” is required, and “notarized statements or
affidavits by the importer or a CITES pre-Convention certificate alone are not necessarily
adequate proof that the article meets the ESA exception.”50
Penalties
Violations of the ESA, including violations of certain provisions in ESA permits, certificates, or
regulations, may result in civil and/or criminal penalties.51 The ESA provides that certain criminal
violations of the Act are misdemeanors, punishable by a fine and/or one year in jail.52 Forfeiture
of the illegal item is also authorized.53
In addition, the Lacey Act54 generally prohibits the import, export, transport, sale, receipt,
acquisition, or purchase of wildlife that has been “taken, possessed, transported, or sold in
violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal
law”; or the import, export, transport, sale, receipt, acquisition, or purchase in interstate or foreign
commerce of wildlife “taken, possessed, transported, or sold in violation of any law or regulation
of any State or in violation of any foreign law.”55 A person may also potentially violate the Lacey
Act and 18 U.S.C. § 1001 when falsely claiming, for example, that a specimen is an ESA
antique.56
African Elephant Conservation Act
Congress passed the African Elephant Conservation Act (AECA)57 in 1988 in an effort to prevent
further decline in populations of African elephants by restricting certain international trade in
African elephant ivory.58 AECA required the Secretary of the Interior to place a moratorium on

47 Order 210, App. A § 1.
48 16 U.S.C. § 1539(g).
49 16 U.S.C. § 1539(g); Order 210, Appendix A §§ 2-3.
50 Order 210, Appendix A § 2.
51 16 U.S.C. § 1540.
52 16 U.S.C. § 1540(b)(1).
53 16 U.S.C. § 1540(e)(4).
54 16 U.S.C. §§ 3371-3378.
55 16 U.S.C. § 3372(a)(1)-(2); FWS, Lacey Act, http://www.fws.gov/international/laws-treaties-agreements/us-
conservation-laws/lacey-act.html.
56 16 U.S.C. § 3372(d); 18 U.S.C. § 1001.
57 16 U.S.C. §§ 4201-4246.
58 16 U.S.C. §§ 4201-4202. For more on the conservation aspects of AECA and the Asian Elephant Conservation Act,
see CRS Report RS21157, International Species Conservation Funds, by Pervaze A. Sheikh and M. Lynne Corn.
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the import into the United States59 of raw60 and worked61 ivory from ivory producing countries
whose African elephant conservation programs did not satisfy certain criteria.62 However, AECA
prevents the Secretary from banning individuals from importing into the United States “sport-
hunted elephant trophies” that they or their principals legally took from ivory producing countries
that have submitted an ivory quota to the CITES Secretariat in accordance with the CITES Ivory
Control System.63
In 1989, FWS found that no ivory producing and intermediary nations were able to comply with
the AECA importation requirements.64 Consequently, AECA and the moratorium promulgated

59 AECA defines “United States” as “the fifty States, the District of Columbia, Guam, the Commonwealth of the
Northern Mariana Islands, the Commonwealth of Puerto Rico, and the territories and possessions of the United States.”
16 U.S.C. § 4244(12).
60 AECA defines “raw ivory” as “any African elephant tusk, and any piece thereof, the surface of which, polished or
unpolished, is unaltered or minimally carved.” 16 U.S.C. § 4244(10).
61 AECA defines “worked ivory” as “any African elephant tusk, and any piece thereof, which is not raw ivory.” 16
U.S.C. § 4244(13).
62 16 U.S.C. §§ 4222(a), 4244(6). The Act directed the Secretary to evaluate the African elephant conservation program
of each African country containing any part of the range of an African elephant population and determine whether the
program met certain criteria. 16 U.S.C. §§ 4221, 4244(7). These criteria are:
(A) The country is a party to CITES and adheres to the CITES Ivory Control System.
(B) The country's elephant conservation program is based on the best available information, and the
country is making expeditious progress in compiling information on the elephant habitat condition
and carrying capacity, total population and population trends, and the annual reproduction and
mortality of the elephant populations within the country.
(C) The taking of elephants in the country is effectively controlled and monitored.
(D) The country's ivory quota is determined on the basis of information referred to in
[subparagraph (B)] and reflects the amount of ivory which is confiscated or consumed domestically
by the country.
(E) The country has not authorized or allowed the export of amounts of raw ivory which exceed its
ivory quota under the CITES Ivory Control System.
16 U.S.C. § 4221(b)(1). Subject to certain conditions, ivory from intermediary countries that imported the goods from
countries under an AECA moratorium must also be prohibited. 16 U.S.C. § 4222(b). AECA requires the Secretary to
impose a moratorium on import of ivory from intermediary countries upon finding that a country:
(1) is not a party to CITES;
(2) does not adhere to the CITES Ivory Control System;
(3) imports raw ivory from a country that is not an ivory producing country;
(4) imports raw or worked ivory from a country that is not a party to CITES;
(5) imports raw or worked ivory that originates in an ivory producing country in violation of the
laws of that ivory producing country;
(6) substantially increases its imports of raw or worked ivory from a country that is subject to a
moratorium under this chapter during the first three months of that moratorium; or
(7) imports raw or worked ivory from a country that is subject to a moratorium under this chapter
after the first three months of that moratorium, unless the ivory is imported by vessel during the
first six months of that moratorium and is accompanied by shipping documents which show that it
was exported before the establishment of the moratorium.
16 U.S.C. § 4222(b).
63 16 U.S.C. §§ 4222(e), 4244(8) (defining “ivory quota”). AECA does not define “sport-hunted elephant trophies,” but
at least one court has held that trophies with even minimal carving may be “worked ivory” that does not qualify as an
exempt trophy under U.S. law. United States v. One Etched Ivory Tusk of African Elephant, 871 F. Supp. 2d 128, 136-
39 (2012).
64 FWS, Moratorium on Importation of Raw and Worked Ivory from All Ivory Producing and Intermediary Nations, 54
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thereunder prohibit the import65 of raw African elephant ivory unless it is a qualifying sport-
hunted trophy.66 AECA forbids the export of raw African elephant ivory from the United States.67
AECA and the moratorium promulgated thereunder ban the import of worked African elephant
ivory, and at least one court has held that, under current regulations, this ban applies even to the
import of worked ivory that is part of a sport-hunted trophy.68 AECA does not address the export
of worked ivory from the United States.69 Violations of AECA may subject a person to civil
and/or criminal penalties.70
Recent Executive Branch Actions
On February 11, 2014, President Obama released his National Strategy for Combating Wildlife
Trafficking.71 As part of this initiative, the President announced a plan to “strengthen
enforcement” through the “use [of] administrative tools to address the dramatic increase in illegal
elephant ivory ... trade.”72 Later that same day, DOI issued a press release announcing the
agency’s intent to take regulatory action in order to implement the President’s strategy73 and,
shortly thereafter, issued the Director’s Order and promulgated the final rule revising the CITES
use-after-import provisions.

(...continued)
Fed. Reg. 24758 (June 9, 1989).
65 AECA adopts the ESA’s definition of “import,” which is “to land on, bring into, or introduce into, or attempt to land
on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing,
bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States.” See
16 U.S.C. §§ 1532(10), 4244(5).
66 See 16 U.S.C. §§ 4222-4223; FWS, Moratorium on Importation of Raw and Worked Ivory from All Ivory Producing
and Intermediary Nations, 54 Fed. Reg. 24758, 24761 (June 9, 1989). FWS found that some trophies contribute
“substantial revenues to the wildlife management programs of” ivory-producing nations. 54 Fed. Reg. 24758, 24761.
As discussed below, FWS has stated that as a matter of “law enforcement discretion,” it intends to allow certain
noncommercial imports of raw and worked African elephant ivory. Order 210 § 2(b).
67 16 U.S.C. § 4223(2).
68 16 U.S.C. § 4223; FWS, Moratorium on Importation of Raw and Worked Ivory from All Ivory Producing and
Intermediary Nations, 54 Fed. Reg. 24758, 24761 (June 9, 1989); United States v. One Etched Ivory Tusk of African
Elephant, 871 F. Supp. 2d 128, 136-39 (2012). As discussed below, FWS has stated that as a matter of “law
enforcement discretion,” it intends to allow certain noncommercial imports of raw and worked African elephant ivory.
Order 210 § 2(b).
69 See 16 U.S.C. § 4223.
70 16 U.S.C. § 4224.
71 Executive Office of the President, National Strategy for Combating Wildlife Trafficking (Feb. 11, 2014). A 2013
executive order provides that “wildlife trafficking” means the “poaching of protected species and the illegal trade in
wildlife and their derivative parts and products.” Exec. Order 13648, 78 Fed. Reg. 40621 (July 1, 2013).
72 Executive Office of the President, National Strategy for Combating Wildlife Trafficking 2 (Feb. 11, 2014).
73 DOI, News Release (Feb. 11, 2014). The news release stated that the agency intended to, among other things: 1)
prohibit commercial import of African elephant ivory; 2) prohibit commercial export of elephant ivory; 3) significantly
restrict domestic resale of elephant ivory; 4) clarify the definition of “antique”; 5) restore ESA protection for African
elephants; and 6) support limited sport-hunting of African elephants.
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Director’s Order No. 210
In promulgating the Director’s Order,74 FWS signaled its intent to enforce strictly the moratorium
on imports of raw and worked African elephant ivory established under AECA75—and the antique
exception to the ESA76—and discussed how the agency intended to exercise prosecutorial
discretion with respect to these laws. For AECA, the Director’s Order states that “as a matter of
law enforcement discretion” FWS intends to allow “importation of certain parts and products,”
which it identifies as African elephant ivory imported for law enforcement purposes or certain
scientific purposes; and, under certain conditions, worked ivory imported as part of a household
move, a musical instrument, or a traveling exhibition.77 For the antique exception, which excludes
qualified items from regulation under 16 U.S.C. §§ 1533(d) (protective regulations for threatened
species); 1538(a) (general ESA prohibitions); and 1538(c) (CITES78 prohibitions), FWS clarified
that a person claiming an ESA exemption “bears the burden of proving that the exemption is
applicable” under the ESA.79
CITES Final Rule and Planned Future Regulations
On May 27, 2014, DOI promulgated a final rule that revised certain regulations relating to “use-
after-import” restrictions under CITES—those regulations affect whether an item, after being
imported, can be sold in interstate or intrastate commerce within the United States.80 The CITES
revised regulations, which went into effect on June 26, 2014,81 clarified “that the allowed use
after import into the United States is determined by the status of the specimen under CITES and
the ESA at the time it is imported.”82 The rule also added language requiring a party to be able to
“clearly demonstrate” that the “specimen was imported prior to the CITES listing, with no
restrictions on its use after import” if the party wanted to use the item for commercial purposes in
the United States.83
Notably, FWS has also announced its intent to make certain revisions to the special rule for
African elephants under the ESA that would further restrict commercial trade of African elephant
ivory.84 The Service has published a “Questions & Answers” document in an effort to clarify how

74 Order 210. Order 210 was originally issued on February 25, 2014. To reduce confusion, this memorandum will refer
only to the amended version of the Director’s Order No. 210, as that is the version that is currently operative. FWS
provided a redline copy of the Director’s Order to show how the amendments changed the original order; that
document is available at http://www.fws.gov/policy/a1do210.pdf.
75 16 U.S.C. §§ 4201-4246; FWS, Moratorium on Importation of Raw and Worked Ivory from All Ivory Producing and
Intermediary Nations, 54 Fed. Reg. 24758, 24761 (June 9, 1989).
76 16 U.S.C. § 1539(h).
77 Order 210 § 2(b).
78 As noted above, FWS is charged with the implementation of CITES pursuant to the ESA.
79 Order 210 § 2(a).
80 FWS, Revision of Regulations Implementing the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES); Update Following the Fifteenth Meeting of the Conference of the Parties to CITES, Final
Rule, 79 Fed. Reg. 30400 (May 27, 2014).
81 Generally, a rule cannot become legally binding until 30 days after it has been published in the Federal Register. 5
U.S.C. § 553.
82 79 Fed. Reg. 30410.
83 Id. at 30427.
84 FWS, What can I do with my African elephant ivory? (updated May 15, 2014).
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the new and proposed FWS policies will affect trade in African elephant ivory.85 While this
document provides additional information regarding these developments, it is generalized in
nature, and is explicitly characterized by the agency, at least in part, as being “for guidance only.”
Coupled with the fact that the agency has yet to promulgate a proposed rule on this issue, it is
difficult to speculate on exactly what the terms of any future rule will be and how the agency will
exercise its enforcement discretion in practice.
Restrictions on Trade
This section summarizes restrictions on, and other requirements for, trade in Asian and African
elephant ivory contained in ESA, AECA, CITES, and FWS regulations and policies.
General Requirements
Depending on the type of trade and the species involved, general permitting and licensing
requirements may apply. General requirements and procedures governing the application for, and
FWS issuance of, CITES and ESA permits—as well as associated rules pertaining to fees and
recordkeeping—are located at 50 C.F.R. Part 13. In addition, general rules governing the import
and export of wildlife are located at 50 C.F.R. Part 14. This part includes rules regarding ports
designated for the importation and exportation of certain wildlife specimens (and exceptions);
inspection and clearance of wildlife; import and export declaration requirements; marking
requirements and exceptions; and import/export licenses and inspection fees for commercial
trade.86
Notably, CITES allows parties to the Convention to adopt “stricter domestic measures” governing
trade in specimens of CITES-listed species.87 Thus, a person exporting or re-exporting ivory
from—or importing ivory into—the United States should consult with the Management Authority
of the foreign importing or exporting country to determine whether stricter measures (e.g.,
additional permitting requirements) apply.88 Parties seeking to trade in elephant ivory
(particularly, intrastate trade) may also have to comply with certain state laws, provided that
federal law does not preempt them.89
Asian Elephant Ivory
Because FWS has listed the Asian elephant as an endangered species under the ESA, and CITES
parties have designated it as an Appendix I species under the Convention, international and
domestic trade in its ivory is heavily restricted. Unless an exception applies, the ESA prohibits

85 FWS, What can I do with my African elephant ivory? (updated May 15, 2014),
http://www.fws.gov/international/travel-and-trade/ivory-ban-questions-and-answers.html.
86 50 C.F.R. Part 14.
87 CITES, Art. XIV(1). For example, a CITES party may choose not to recognize the personal effects exemption.
Resolution Conf. 13.7 (Rev. CoP16), Control of Trade in Personal and Household Effects.
88 FWS, Fact Sheet, CITES Permits and Certificates (December 2012), http://www.fws.gov/international/pdf/factsheet-
cites-permits-and-certificates-2013.pdf.
89 See 16 U.S.C. § 1533(f) (stating that, in certain circumstances, federal law preempts conflicting state laws governing
the import or export of—or interstate or foreign commerce in—ESA-listed species).
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persons subject to U.S. jurisdiction from, among other things, importing or exporting the ivory;
delivering, receiving, carrying, transporting, or shipping the ivory in interstate or foreign
commerce in the course of a commercial activity; and selling or offering the ivory for sale in
interstate or foreign commerce.90 In addition, the ESA prohibits international trade in specimens
in violation of CITES (e.g., commercial trade in Asian elephant ivory removed from the wild on
or after it became an Appendix I species on July 1, 1975), and possession of specimens previously
traded in violation of CITES.91
Possible exceptions to these prohibitions under the ESA include (1) that the ivory was traded
pursuant to an ESA permit for certain non-commercial purposes92 and the terms and conditions of
the permit were satisfied;93 (2) that the item is a bona fide antique,94 which, if traded
internationally, is accompanied by a pre-Convention certificate;95 or (3) that the ivory is a pre-
ESA specimen that was held in a controlled environment or from a specimen held in captivity
before FWS listed the Asian elephant as “endangered” under the ESA on June 14, 1976,96 and has
not been bought or sold since that time97 that is being imported or exported for noncommercial
purposes and complies with any relevant CITES requirements.98
In addition, specimens of the Asian elephant, a CITES Appendix I species, that have been
imported into the United States may not be used or transferred for commercial purposes in
intrastate commerce unless it is a pre-Convention item (removed from the wild prior to July 1,

90 16 U.S.C. § 1538(a)(A), (E)-(F); 50 C.F.R. § 17.21(a)-(b), (e)-(f).
91 16 U.S.C. § 1538(c).
92 Such purposes relevant to this discussion include scientific purposes and the enhancement of propagation or survival
of the species. 16 U.S.C. § 1539(a), (c)-(d), (g). Because the Asian elephant is an Appendix I species, import or export
of its ivory for primarily commercial purposes is generally prohibited under CITES. CITES, Art. III.
93 16 U.S.C. § 1539(a); 50 C.F.R. § 17.22. International trade of the specimen may also have to meet additional CITES
requirements incorporated into FWS regulations. See, e.g., 50 C.F.R. § 23.20(d)(11).
94 For more on the requirements of the antique exception, see “Exception for Antiques” above. It appears that such
antiques may be traded for commercial or non-commercial purposes.
95 16 U.S.C. § 1539(g)-(h). FWS does not interpret the 1978 ESA amendments that added the antique exception as
repealing treaty obligations under CITES related to pre-Convention certificates. Order 210, Appendix A n.i.
A person claiming the antique exception for an import or export must document the species and age of the specimen to
show that it qualifies for the exception. 16 U.S.C. § 1539(g); Order 210, Appendix A §§ 2-3. According to FWS, at
least for imports, “qualified appraisal, documents that provide detailed provenance, and/or scientific testing” is
required, and “notarized statements or affidavits by the importer or a CITES pre-Convention certificate alone are not
necessarily adequate proof that the article meets the ESA exception.” Order 210, Appendix A § 2.
96 Endangered Status for 159 Taxa of Animals, 41 Fed. Reg. 24062, 24066 (June 14, 1976).
97 It appears that the ivory may have been acquired in a noncommercial transfer (e.g., a gift) at any time so long as it
was held in captivity or a controlled environment for noncommercial purposes prior to the date of its listing as an
endangered species under the ESA. The Asian elephant has been listed in CITES Appendix I since the Convention
entered into force on July 1, 1975. CITES, Asian Elephant,
http://www.cites.org/eng/gallery/species/mammal/asianelephant.html. Thus, it appears that, in addition to ESA
requirements, the specimen would have to be accompanied by a pre-Convention certificate if removed from the wild
prior to that date.
98 16 U.S.C. § 1538(b); 50 C.F.R. § 17.4. If the import or export occurred more than 180 days after the passage of the
ESA or the listing of the endangered or threatened species, there is a rebuttable presumption that the “wildlife involved
in such act is not entitled to the exemption contained in this subsection.” 16 U.S.C. § 1538(b).
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1975) imported with proper documentation.99 Even if it is such an item, regulations or permit
conditions may restrict use to non-commercial purposes.100
African Elephant Ivory
Trade in African elephant ivory is restricted, but not as heavily as with trade in Asian elephant
ivory. FWS listed the African elephant as threatened under the ESA on June 11, 1978,101 and FWS
promulgated a special rule for it at that time.102 The African elephant has been a CITES-listed
species since February 26, 1976, and an Appendix I species since January 18, 1990.103 However,
certain populations of African elephants in Botswana, Namibia, South Africa, and Zimbabwe
were later moved to Appendix II, subject to annotations governing trade in their specimens.104
Import Restrictions
AECA, among other restrictions on ivory trade, authorized FWS to impose a moratorium on the
import of African elephant ivory from countries that do not meet certain conservation
standards.105 In 1989, FWS issued a moratorium that prohibits the import of African elephant
ivory “from ivory producing and intermediary nations.”106 Under the Director’s Order, FWS has
announced that it plans to enforce strictly the prohibition on imports. FWS has stated that the
“Service no longer allows any commercial importation of African elephant ivory. This
prohibition, which was originally established via the 1989 [AECA] moratorium, applies even to
items that qualify as antiques.”107
FWS’s Authority to Ban Commercial Import of Antique African Elephant Ivory
Although it appears that, as a matter of policy, FWS has previously allowed import of antique
African elephant ivory for commercial purposes prior to the Director’s Order,108 the Director’s
Order declares that it “supersedes all previous policies on the June 9, 1989, [AECA] import

99 50 C.F.R. § 23.55.
100 Id. State laws could also potentially restrict use of a specimen in intrastate commerce.
101 FWS, Listing of the African Elephant as a Threatened Species, 43 Fed. Reg. 20499, 20504 (May 12, 1978).
102 The rule, as amended, is located at 50 C.F.R. § 17.40(e).
103 See United Nations Environmental Programme and CITES Secretariat, Species+ website, Loxodonta africana, at
http://speciesplus.net/#/taxon_concepts/4521/legal?taxonomy=cites_eu.
104 See id.
105 16 U.S.C. §§ 4221, 4222.
106 FWS, Moratorium on Importation of Raw and Worked Ivory From All Ivory Producing and Intermediary Nations,
54 Fed. Reg. 24758, 24761 (June 9, 1989).
107 FWS, What can I do with my African elephant ivory? (updated May 15, 2014). For a more detailed description of
the antique exception and its requirements, see “Exception for Antiques” above.
108 “[I]mport of worked ivory into the United States continues to be prohibited under the terms of [AECA], as
interpreted by the ESA 4(d) special rule, unless they meet any of the following exceptions: (1) Bona fide antiques more
than 100 years old...” 62 Fed. Reg. 44627, 44633 (Aug. 22, 1997); “The final revised special rule does contain limited
exceptions that allow the import of ivory that is ... a bona fide antique...” 57 Fed. Reg. 35473, 35484 (Aug. 10, 1992).
Antique CITES-listed specimens must generally be accompanied by a pre-Convention certificate issued by the
exporting or re-exporting country. 50 C.F.R. § 23.45.
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memorandum.”109 Therefore, because the newly announced policy does not permit the
commercial importation of antiques,110 and this policy statement supersedes previously
announced policies, it appears the importation of antiques for commercial purposes will no longer
be permitted. It is worth noting, however, that the current regulation of African elephant ivory
under the ESA, as published in the Code of Federal Regulations, allows for the import of antiques
but does not specify that such imports must be for noncommercial purposes.111 It is arguable that
this rule would need to be revised, pursuant to notice and comment rulemaking procedures, in
order for the ban on antique African elephant imports to be enforceable.112 Therefore, although
the FWS fact sheet on permissible activities currently indicates that commercial import of antique
ivory is prohibited,113 FWS may need to conduct rulemaking to bring its regulations into
compliance with this policy. However, FWS has already indicated that it intends to revise the
ESA special rule for African elephants, and it is possible that the planned rulemaking would
remove, or otherwise clarify, the antique exception from the regulations.114
Exceptions for Certain Noncommercial Ivory Imports
Although the Director’s Order announces a plan to enforce strictly the prohibition on importation
of African elephant ivory, it provides limited exceptions to the general rule as a matter of law
enforcement discretion.115 Raw or worked ivory may be imported into the United States for “law
enforcement purposes” and for “genuine scientific purposes that will contribute to conservation of
the species.”116 Furthermore, worked African elephant ivory may be imported into the United
States for “personal use as part of a household move or as part of an inheritance,” if the following
conditions are met: (1) the ivory must have been legally acquired prior to February 26, 1976 (the
date the African elephant was listed under CITES); (2) the ivory must not have been transferred
for personal gain or profit since February 25, 2014 (the date of Director’s Order No. 210); and (3)
the ivory must be accompanied by a valid CITES pre-Convention certificate.117
The Director’s Order also allows for the importation, for noncommercial purposes, of worked
African elephant ivory that is part of a musical instrument or traveling exhibition (e.g., museum
or art show) if certain criteria are met.118 Just as above, the ivory must have been legally acquired

109 Order 210 § 1(c).
110 See id. at § 2(b).
111 50 C.F.R. § 17.40(e)(3)(ii)(1) (“Raw or worked ivory (other than sport-hunted trophies) may be imported only if: (1)
It is a bona fide antique of greater than 100 years of age on the day of import...”).
112 See 5 U.S.C. § 553. Agencies are obligated to follow their own regulations. United States ex rel. Accardi v.
Shaughnessy, 347 U.S. 260, 265-68 (1954), superseded by statute on other grounds; A.D. Transport Express, Inc. v.
United States, 290 F.3d 761, 766 (6th Cir. 2002) (“When an agency promulgates regulations, it is ... bound by those
regulations.”).
113 FWS, What can I do with my African elephant ivory? (updated May 15, 2014).
114 Id. It is unclear whether FWS has the statutory authority to remove the antique exception from the special rule.
Because AECA followed the 1978 ESA amendments that established the antique exception for listed species, and
because the AECA ivory moratorium is more specific than the general exception within ESA, it could be argued that
AECA supersedes general ESA provisions, which exempt qualified antiques made from endangered or threatened
species (16 U.S.C. § 1539(h)) from otherwise applicable ESA protections, including those provided to threatened
species under 16 U.S.C. § 1533(d). However, it does not appear that any court has considered the issue.
115 Order 210 § 2(b).
116 Id. at § 2(b)(1), (2).
117 Id. at § 2(b)(3).
118 Id. at § 2(b)(4), (5).
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prior to February 26, 1976, and cannot have been sold for personal gain or profit since February
25, 2014.119 In addition, the person or group seeking permission to import must qualify for, and
the item must generally be accompanied by, a valid CITES musical instrument or traveling
exhibition certificate.120
Sport-hunted Trophies
Finally, under AECA, FWS is prohibited from establishing a complete moratorium on sport-
hunted trophies.121 Under the African elephant special rule, the importation of a sport-hunted
trophy for noncommercial purposes is still generally permitted if (1) the trophy originates in a
country that has submitted an African elephant ivory quota for that year; (2) permit requirements
in 50 C.F.R. parts 13 and 23 are met; (3) FWS determines that the killing of the trophy animal
would “enhance survival of the species”; and (4) certain marking requirements are met.122
However, trophies generally may not be sold after import into the United States.123 Currently,
there is no limit on the number of African elephant sport-hunted trophies that may be imported;
however, FWS has indicated that it intends to promulgate a rule that would limit the number of
sport-hunted trophies a person can import in a given year.124
In August 2014, the United States notified other CITES parties that it was suspending imports of
certain sport-hunted African elephant trophies taken in the United Republic of Tanzania and
Zimbabwe because, according to FWS, it could not make the necessary “enhancement” findings
under the special rule.125 It is unclear whether FWS has the authority to suspend imports under the
special rule when AECA states that the “Secretary shall not establish any moratorium under this
section ... which prohibits the importation into the United States of sport-hunted trophies from
elephants that are legally taken by the importer or the importer’s principal in an ivory producing
country that has submitted an ivory quota.”126 It appears that the United Republic of Tanzania and
Zimbabwe have each submitted an ivory quota for 2014.127

119 Id.
120 Id.; 50 C.F.R. § 23.20(d)(15); see also Resolution Conf. 16.8, Frequent Cross-border Non-commercial Movements
of Musical Instruments.
121 16 U.S.C. § 4222(e). FWS has defined “sport-hunted trophy” in its CITES implementing regulations as “raw or
tanned parts of a specimen that was taken by a hunter, who is also the importer, exporter, or re-exporter, during a sport
hunt for personal use. It may include the bones, claws, hair, head, hide, hooves, horns, meat, skull, teeth, tusks, or any
taxidermied part, including, but not limited to, a rug or taxidermied head, shoulder, or full mount. It does not include
articles made from a trophy, such as worked, manufactured, or handicraft items for use as clothing, curios,
ornamentation, jewelry, or other utilitarian items.” 50 C.F.R. § 23.74(b).
122 50 C.F.R. § 17.40(e)(3)(iii).
123 See 50 C.F.R. §§ 23.55, 23.74.
124 FWS, What can I do with my African elephant ivory? (updated May 15, 2014).
125 Notification to the CITES Parties by the United States, Suspension of Imports of Sport-hunted Trophies of African
Elephant Taken in the United Republic of Tanzania and Zimbabwe (August 11, 2014); 50 C.F.R. § 17.40(e)(3)(iii)(C).
126 16 U.S.C. § 4222(e).
127 Information on submitted export quotas is available at http://cites.org/sites/default/files/common/quotas/2014/
ExportQuotas2014.pdf.
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Export Restrictions
Pursuant to AECA, it is unlawful to export raw African elephant ivory from the United States.128
Therefore, the export of African elephant ivory is limited to certain worked ivory. According to
FWS, the commercial export of worked African elephant ivory is prohibited except for bona fide
antiques and other CITES pre-convention worked ivory.129 Under the ESA, bona fide antiques130
are exempted from the export restrictions, but must generally still be accompanied by a CITES
pre-Convention certificate.131
In addition to antiques, worked ivory that predates the CITES listing of African elephants may be
exported for commercial or non-commercial purposes under the African elephant special rule if
proper permits are obtained, including, possibly, a CITES pre-Convention certificate.132
Domestic Trade
Domestic trade of CITES-listed species, such as the African elephant, is restricted.133 Pursuant to
the final rule promulgated by FWS on May 27, 2014, African elephant ivory imported into the
United States can only be used for noncommercial purposes, with limited exceptions.134 Pursuant
to revised 50 C.F.R. § 23.55, imported African elephant ivory can only be bought or sold in
interstate or intrastate commerce if the ivory was lawfully imported prior to January 18, 1990 (the
date the African elephant was listed as a CITES Appendix I species), with no restrictions on its
use after import on the permit or if the ivory was imported under a CITES pre-Convention
certificate, which requires the ivory to be taken from the wild prior to February 26, 1976 (the date
the African elephant was listed as protected under CITES).135 The party must be able to “clearly
demonstrate that this exception applies.”136 However, FWS has indicated that it intends to
promulgate a proposed rule that would further restrict interstate commerce in African elephant
ivory.137 In addition, as discussed above, ivory that qualifies for the ESA antique exception is not
subject to regulation under 16 U.S.C. §§ 1533(d) or 1538(a) and (c).138
Personal possession and noncommercial use of legally acquired African elephant ivory, including
movement between states, remains permissible.

128 16 U.S.C. § 4223(2).
129 FWS, What can I do with my African elephant ivory? (updated May 15, 2014).
130 For more on the requirements of the antique exception, see “Exception for Antiques” above.
131 16 U.S.C. §§ 1538(a), 1539(h)(1).
132 50 C.F.R. §§ 17.40(e)(3)(ii), 23.15(f).
133 16 U.S.C. § 1538(c).
134 79 Fed. Reg. 30400, 30409-11.
135 Id. at 30426-427.
136 Id. at 30427.
137 FWS, What can I do with my African elephant ivory? (updated May 15, 2014).
138 16 U.S.C. § 1539(h).
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Proposed Legislation in the 113th Congress and
Planned FWS Regulations
President Obama’s National Strategy for Combating Wildlife Trafficking calls for stricter
enforcement of U.S. laws governing trade in elephant ivory products.139 The Director’s Order
appears to be the first step in FWS’s efforts to implement the President’s strategy. As noted above,
FWS has announced its intention to introduce a proposed rule that would amend the special rule
that pertains to African elephant ivory. To date, FWS has not issued the proposed rule, but the
agency has suggested that the special rule would be amended to restrict trade in ivory products
further. If FWS promulgates such a proposal, it will be important to note how trade in African
elephant ivory is further restricted and under what statutory authority FWS takes such action.
It is also important to note that Congress can pass legislation changing ivory trade enforcement
policies. Congress has authority to change existing law to expand, contract, or clarify FWS
authority with respect to wildlife tracking.140 Since President Obama released his National
Strategy for Combating Wildlife Trafficking and FWS issued the Director’s Order, some Members
of Congress have expressed concern that the new policies could potentially impact musicians,
antique businesses, and other individuals who may no longer be able to buy or sell certain
products containing ivory. In July, Senator Lamar Alexander and Representative Steve Daines
introduced the Lawful Ivory Protection Act of 2014 in their respective houses of Congress.141 The
proposed legislation appears to amend the ESA to block the new FWS policy announced in the
Director’s Order. The bill would essentially require FWS to use the enforcement practices,
policies, orders, and regulations that existed on February 24, 2014—the day immediately before
FWS issued Director’s Order 210—thus negating the impact of the newly announced FWS policy
and limiting the agency’s ability to change existing regulations.142

Author Contact Information

Brandon J. Murrill
Daniel T. Shedd
Legislative Attorney
Legislative Attorney
bmurrill@crs.loc.gov, 7-8440
dshedd@crs.loc.gov, 7-8441



139 Executive Office of the President, National Strategy for Combating Wildlife Trafficking 2-3 (Feb. 11, 2014).
140 Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 355, 374 (1986) (“[A]n
agency literally has no power to act ... unless and until Congress confers power upon it.”).
141 S. 2587, 113th Cong. (2014); H.R. 5052, 113th Cong. (2014).
142 S. 2587, 113th Cong. (2014) (providing that FWS regulations (and “policies, orders, or practices pursuant to such
regulations”) may not “change any methods of, or standards for, determining if [] ivory has been lawfully imported that
were in effect on February 24, 2014, ... prohibit or restrict the importation of such ivory that was lawfully importable
into the United States on February 24, 2014[,] ... or prohibit or restrict the possession of such ivory that was lawfully
possessable in the United States on February 24, 2014...”).
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