Ivory & Regulatory Issues

To qualify for the de minimis exception, manufactured or handcrafted items must meet all of the following criteria:

1. If the item is located within the United States, the ivory was imported into the United States prior to January 18, 1990, or was imported into the United States under a Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) pre-Convention certificate with no limitation on its commercial use;

2. If the item is located outside the United States, the ivory was removed from the wild prior to February 26, 1976;

3. The ivory is a fixed or integral component or components of a larger manufactured or handcrafted item and is not in its current form the primary source of the value of the item, that is, the ivory does not account for more than 50 percent of the value of the item;

4. The ivory is not raw;

5. The manufactured or handcrafted item is not made wholly or primarily of ivory, that is, the ivory component or components do not account for more than 50 percent of the item by volume;

6. The total weight of the ivory component or components is less than 200 grams; and

7. The item was manufactured or handcrafted before the effective date of this rule.

The USFW based the 200-gram figure on the approximate weight of a set of piano keytops. Throughout the ruling, the USFW goes to great lengths to point out that they don’t believe musical instruments are contributing to the poaching of elephants or the ivory trade.

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. 

1. 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.
2. 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.

1. 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.
2. 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).

1. 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.
2. 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.

Though not required, a qualified appraisal or another method of documenting the value of the item and the relative value of the ivory component - including information in catalogs, price lists, and other similar materials - can also be used. We will not require ivory components to be removed from an item to be weighed. (US FSW)

That means a letter from a piano technician, a photocopy of relevant information from the Pierce Piano Atlas and even a handmade certificate with information about age,model,etc. should prove sufficient. The USFW says they know what they’re looking for in terms of ivory smuggling, and musical instruments aren’t the problem.

The Piano Technicians Guild represents approximately 3,500 piano technicians world wide and tens of thousands of piano owners. There is a significant number of piano owners with ivory key tops that will be negatively affected by any legislation requiring proof of provenance. We are hopeful legislation can be crafted to protect these people, some with pianos over 100 years old, while stopping the illegal poaching of elephants and preserving the musical history and integrity of these pianos and their owners.

The Piano Technicians Guild could not be more appalled with the continued illegal poaching of elephants. This is a serious problem that needs to be dealt with at the source. We are in support of any action that stops the illegal flow of poached ivory while preserving the integrity of piano owners who are in possession of legally obtained ivory.

The piano industry has always been cooperative and law abiding regarding ivory content in pianos. Since 1989, any new pianos manufactured domestically or pianos entering US ports have been free of ivory. Over the last 20 years, more production of new pianos has been done over seas in countries like Japan, Korea, and China to name a few. European countries like Germany and Austria have also shipped new pianos to the US, all free of ivory.  Our concern with this issue is based in the 300+ year history of the piano and the integrity of the owners of these instruments with legally obtained ivory – long before the present poaching problem existed. We find it intrusive and counter-productive to ask an owner of a 1943 Steinway Grand Piano, for example, to produce proof that the ivory key tops on this instrument are in fact original. Providing proof of provenance is not possible since the manufacturers are not sure where the origin of the ivory is from. Although Steinway and Sons is a manufacturer still in business, there are many piano manufacturers no longer in business, so using their technical or support staff as a source of information does not exist. A domestic ban unnecessarily hurts owners of legally obtained ivory, criminalizes piano owners, and does nothing to stop the illegal poaching.

Proving provenance of ivory does not save another elephant from the illegal activity. The Piano Technicians Guild is hopeful that legislation stopping and criminalizing those who obtain ivory illegally can be produced and enforced while preserving artistic history of the piano, its legally obtained ivory key tops, and preserving the integrity of both the instrument and the owners of these instruments. We are hopeful the effort to control the flow starts with the source, not the legally obtained owners of artistic and musical history.