By: Corr Mitchell LLC
The Federal Government is about to crush small businesses across the United States in the name of stopping elephant poachers in Africa. Unless regulators and law makers get up to speed about an emotional issue that could drive a knee-jerk reaction at the expense of jobs, hundreds of law abiding businesses and art collectors will be hurt by an unnecessarily heavy-handed policy.
On February 11, 2014, the White House along with the U.S. Fish & Wildlife Service (“USFWS”) announced the National Strategy for Combating Wildlife Trafficking & Commercial Ban on Trade in Elephant Ivory. Without input from the legislative branch, the executive branch announced its plan to do everything in its power to criminalize the domestic trade of elephant ivory and any items that contain ivory. Full policy implementation would make it practically impossible to sell, refurbish, repair, embellish or otherwise transfer ownership of anything containing elephant ivory, rendering those items worthless. While talking at length about the emotionally charged topic of elephant poaching in Africa, the policy only superficially addresses the successful measures the United States already has taken or how this policy will hurt people who have never broken any laws or contributed to elephant poaching.
Unlike the current policy, the USFWS (the agency with primary responsibility for regulating ivory) issued a 2012 Fact Sheet acknowledging the effectiveness of current laws by stating they “do not believe that there is a significant illegal ivory trade into this country.” From 1989 to date, the US has made “significant seizures” of illegally imported ivory which accounts for about 30% of all reported seizures in the world. The Service said that most of that ivory was “unwittingly purchase[d] and import[ed] into the United States only to have [the ivory] confiscated at the ports.” That ivory, collected over 25 years since the 1989 ban, was recently crushed by the government for publicity to launch this most recent effort to ban domestic trade.
The same 2012 USFWS Fact Sheet also acknowledged that outside the United States, especially in Asia, there remains a brisk trade in poached elephant ivory. Without explanation, the USFWS now portrays the United States as the second largest market requiring drastic action, the hope being that killing the domestic trade of pre-ban ivory in the United States will affect demand of illegally traded ivory in China.
Painfully absent from this discussion is the impact on businesses and art collectors in the United States who have always followed the law. Unlike in China where poached elephant ivory costs $1500 per pound, in the United States pre-ban ivory is plentiful and only about $250 per pound. Before the 1989 ban, there was already a lot of ivory in the country that could be traded, whether from existing commercial stocks, excess ivory stored by museums, or ivory that came on the market in estate sales when collectors died or when recycled from other items like piano keys. This ivory has been used in products including antique restorations, musical instruments, chess sets, tool and knife handles, pistol grips, and custom pool cues or jewelry, not to mention a variety of religious and cultural items. Businesses in this industry are typically artisans who make, sell, repair, refurbish or embellish items. Because of existing export restrictions, big businesses avoid using ivory, isolating the market from areas of the world where poachers trade their ivory.
Full domestic ban implementation threatens to wipe out small businesses and render items containing ivory worthless on legal markets without affecting demand in the areas of the world that pay poachers to kill elephants for their tusks. The proposed policy threatens to impose documentation requirements on pre-ban ivory that are impossible to meet, leaving businesses with legal ivory stock and products that contain ivory that they can no longer sell and for which they have not been compensated. Families will have heirlooms that can only be stored or destroyed. People with musical instruments won’t be able to repair or refurbish them, and artisans who dedicated a lifetime to learning their craft will become obsolete if not criminal.
Instead of a heavy-handed ban that will expand the international black market, officials would be wise to tighten areas where illegal ivory could leak through the system. The problem is at the borders – if poached ivory can’t enter this market, then domestic trade of legal ivory need not be impaired. Most importantly, the government should be reaching out to the citizens who the policy will negatively affect to implement rules that do not punish innocent people. The government does not appear to have made any significant attempt to evaluate the economic impact of this ban, nor has it consulted with most affected businesses to develop less draconian means for achieving its stated goal.
The speed with which this domestic ban is being implemented has taken most businesses by surprise. The government’s confiscated ivory crush was announced in September 2013, the President established an advisory group in December, the policy was announced on February 11, and USFWS issued their first directive affecting international trade changes on February 26. USFWS intends to issue rules on domestic trade starting in April.
Businesses, art collectors and everyone concerned about the domestic ivory ban need to act now. Start by contacting Senators and Members of Congress to inform them on the issues. Because time is of the essence, phone calls are best with follow-up e-mails. Find your Member of Congress here, Senators here.
Second, spread the word among your peers and your customers. This isn’t just about poached elephants – it is about people losing their livelihoods and/or their investment in treasured items unnecessarily. The other side of this story needs to get out, and the people who are affected need to tell it.
About Corr Mitchell LLC:
Law firm of Corr Mitchell LLC is located in Bucks County, Pennsylvania. They specialize as general counsel to small businesses who do not employ a lawyer in-house, and back up the in-house counsel for medium and large businesses who need additional support. The above article is posted on their website.