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The Proposed 4(d) Rule on Ivory and How Each of Us Can Help Ensure a Future for Elephants

By John Calvelli

When Americans hear that elephants are being poached into extinction for their ivory, there is a tendency to think of it as somebody else’s problem. Those elephants are being killed thousands of miles away in Africa, often benefiting extremist groups, and short of standing guard in the national parks ourselves or financially supporting worthwhile conservation efforts, we believe there is not much we can do. Similarly, we assume that the ivory is on its way to Asia, and it is beyond our means to stop consumers in Asia from buying ivory.

One of the most important remaining populations of African forest elephants lives in and around Dzanga Bai in the Central African Republic. Photo by Cristián Samper ©WCS
One of the most important remaining populations of African forest elephants lives in and around Dzanga Bai in the Central African Republic. Photo by Cristián Samper ©WCS

Don’t fall into this trap. The elephant crisis is not an ocean away; it is in our cities, at our doorstep, and at our fingertips online. The U.S. is one of the world’s largest ivory consumers and maintains a legal commercial ivory market that serves as cover for smuggled ivory, which is virtually impossible to differentiate from legal ivory without a costly scientific analysis.

A comprehensive study in 2008 of more than 650 retail stores in 16 cities in the U.S. and Canada found that of the 24,000 pieces of ivory for sale, as many as one-third were potentially illegal and warranted further testing. A 2015 report by the Natural Resources Defense Council found that up to 90 percent of ivory for sale in Los Angeles and 80 percent in San Francisco is likely illegal.

And a recent analysis by WCS and the International Fund for Animal Welfare found nearly $1.5 million worth of ivory for sale on Craigslist in a one month period on only 28 of their 700 sites. Americans are buying ivory, and that demand puts increased pressure on rapidly dwindling populations of elephants.

Unfortunately, current regulations under the Endangered Species Act (ESA) place the burden on federal law enforcement to determine that an ivory piece is illegal – an impossible task for the U.S. Fish and Wildlife Service (FWS) and its small number of enforcement agents nationwide.

A 2012 seizure of $2 million in illegal ivory in New York City. The United States is one of the largest ivory markets after China. Photo © Manhattan District Attorney's Office
A 2012 seizure of $2 million in illegal ivory in New York City. The United States is one of the largest ivory markets after China. Photo © Manhattan District Attorney’s Office

On July 29, after months of work, the FWS issued a proposed revision of the ESA 4(d) rule to close loopholes that have allowed illegal ivory to be sold in the U.S. for decades. The proposal takes the necessary steps of banning the commercial sale of most ivory in interstate or foreign commerce, with some exceptions intended to allow the domestic sale of items that are clearly not contributing to the elephant poaching crisis.

The rule would require sellers to demonstrate that items for sale containing ivory qualify for an exemption from the law so consumers may be assured they are purchasing a legal product. It also tightens the Congressionally mandated ban on the import and export of raw and worked ivory, with some targeted exceptions.

Taking these critical steps will help to ensure that the U.S. no longer serves as a destination for poached ivory and will stop the inadvertent support of extremist groups by American consumers that have unwittingly purchased illegal ivory.

During development of the proposal, FWS staff met with interested parties from across the country. As a result, the proposed 4(d) rule contains reasonable exceptions intended to accommodate many of the concerns expressed by these stakeholders.

As before, legally imported, verified antiques that are at least 100 years old may still be sold. Items less than 100 years old containing a de minimus amount of ivory, defined as containing less than 200 grams of ivory and not made wholly or primarily of ivory, such as musical instruments with small ivory inlays, can also be sold if the seller can show that the ivory was legally imported.

On World Elephant Day, August 12, people around the globe are uniting to protect this iconic species. Photo by Julie Larsen Maher ©WCS.
On World Elephant Day, August 12, people around the globe are uniting to protect this iconic species. Photo by Julie Larsen Maher ©WCS.

These are common sense rules to make common sense changes. The singular focus is on stopping black market ivory from finding its way to American consumers. After all, if we expect the rest of the world to work with us on stopping the potential extinction of Africa’s elephants, Americans must realize that the fight to save elephants is also taking place here at home.

August 12th has been designated as World Elephant Day, an opportunity for all of us to celebrate this iconic species.  Hopefully, it will also serve as a reminder that each of us can make a difference. By supporting the proposed ESA 4(d) rule we will make sure that our voices are being heard and we are playing our part to make sure that there is a future for elephants.

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John Calvelli is Executive Vice President for Public Affairs at WCS (the Wildlife Conservation Society) and Director of WCS’s 96 Elephants Campaign.