1. How does the new law affect the repair or replacement of ivory keytop veneers on pianos that meet the de minimis requirement?
"Commercial activity" under the Endangered Species Act (ESA) means "all activities of industry and trade, including but not limited to, the buying and selling of commodities and activities conducted for the purpose of facilitating such buying and selling…” The Service has defined "industry or trade" (in 50 CFR 17.3) to mean "the actual or intended transfer of wildlife or plants from one person to another in the pursuit of gain or profit."
On page 45161 of the preamble to our proposed rule (80 CFR 45154, July 29, 2015), the section titled Interstate and Foreign Commerce contains information on the ESA definition of “commercial activity” and how the Service implements this definition. We clarify that there are a number of activities involving ivory that would not be prohibited under these ESA standards, provided the activity does not qualify as "sale" or "offer for sale."
The example given involves a person transporting an item across state lines for repair (e.g. a piano with ivory keys). This activity would not fall under the prohibition for commercial activity because there would be no transfer of the item from one person to another. The person doing the repair would gain financially, but the payment of money would be to compensate the repair person for labor and expenses and would not involve gain or profit from the ivory itself, unless additional ivory was used to repair the item, which would not be allowed.
- May ivory salvaged from other pianos or other old stock be used as repair materials on piano keytops (assuming it meets the de minimis requirements)?
No, not if it involves interstate commerce. See response to 1, above. Ivory salvaged from other pianos and used as repair materials where the activity is entirely within the same state is not implicated by the prohibition. However, if the original piano keytop is an antique for purposes of the ESA, the repair would result in the loss of antique status.
- May ivory keys be removed from the piano and transported across state lines to a repair person and then returned (whether to be repaired with salvaged ivory or other materials)?
Yes, provided there is no additional ivory used in the repair. See response to 1, above.
2. Someone has a 1942 Steinway Grand Piano to sell and it has the original ivory...or wants to buy that same 1942 Steinway across state lines. It meets de minimis requirements.
- What will be the correct procedure for the sale to meet the new federal requirements?
Sale of this piano, as described, is allowed under the new rule that goes into effect on July 6, 2106. Under the ESA, the person claiming the benefit of an exemption has the burden of showing that the item or activity qualifies for the exemption. The seller must have evidence to show that the piano meets the criteria for the de minimis exception; and the buyer should ask for this documentation. Some states also have restrictions on sale of elephant ivory, so the buyer/seller should also check to be sure they are in compliance with state requirements.
- Is there any kind of formalized process for establishing reference material? In the case of the piano industry, the commonly used reference is a publication called the Pierce Piano Atlas. Some of our members have used it in past with USFW agents but I don’t think it’s ever been formally recognized as an “official” source.
There is no process for formally recognizing reference material. Provenance may be determined through a detailed history of the item, including family photos, ethnographic fieldwork, or other information that authenticates the article and assigns the item to a known period of time or, where possible, to a known artist, artisan or manufacturer. A qualified appraisal or another method, including using information in catalogs, price lists and other similar materials (e.g., the Pierce Piano Atlas) that document the age by establishing the origin of the item, can also be used.
3. How does USFW anticipate the new rule being used in states where federal law is less restrictive than the state law (New Jersey springs to immediate mind)?
The new rule regulates sale across state lines (interstate commerce) but does not reach to sale within a state (intrastate commerce).
- Will sellers be able to sell musical instruments meeting the de minimis requirements to buyers across state lines? Vice versa?
Yes. Under the new rule, interstate commerce in musical instruments that meet the criteria for the de minimis exception is allowed; such items may be bought and sold in interstate commerce.
- Will USFW be encouraging states to adopt or modify legislation to more readily conform with the new federal rule?
We have not actively participated in the development or adoption of state laws regarding ivory trade, and we have no plans to engage the states to adopt or modify their laws, although we routinely provide guidance on the federal requirements and will continue to do so.
Questions were submitted in writing via e-mail to Laury Marshall Parramore, Division of Public Affairs, U.S. Fish and Wildlife Service, MS: EA, 5275 Leesburg Pike, Falls Church, VA 22041-3803. Answers received on June 29, 2016 in an e-mail from Parramore.