Ivory & Regulatory Issues

"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.

a. 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.

b. 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.

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.

b. 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.

The new rule regulates sale across state lines (interstate commerce) but does not reach to sale within a state (intrastate commerce).

a. 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.

b. 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.

Update as of 5/15/14

We took our first step to implement a nearly complete ban on commercial elephant ivory trade with the issuance of Director’s Order 210 on February 25, 2014. The Director’s Order allows enforcement discretion on the import moratorium for certain specimens containing CITES pre-Convention (removed from the wild prior to February 26, 1976) worked ivory, under specific conditions. Based on consultation with musicians, exhibitors, and others involved in the movement of specimens containing elephant ivory, we revised Director’s Order 210 on May 15, 2014, so that ivory as part of a musical instrument, a traveling exhibition, or as part of a household move or inheritance, that had been bought or sold prior to February 25, 2014—the date that the Director’s Order was issued—could be imported or exported under the exception. Prior to revising Director’s Order 210, these items could not have been bought or sold after February 26, 1976. This provision would have prevented musicians, orchestras, and others from importing an instrument containing elephant ivory, unless it had been purchased more than 28 years ago. This is a common sense revision that will allow musicians to import their instrument containing elephant ivory and will allow for the import of museum specimens and certain other items not intended for sale.

• Clarify the Definition of “Antique”: We intend to incorporate the Endangered Species Act’s exemptions for commercial trade of 100-year-old antiques into regulations that re-affirm the criteria that must be met for an item to qualify as an antique.

Update as of 5/15/14

The first step in this action was completed on February 25, 2014, with the issuance of Director’s Order 210.?On May 15, 2014, we revised Director’s Order 210 to allow the sale of certain 100-year-old items that were either created in the United States or imported prior to September 22, 1982—the date that antique ports were designated. Prior to this decision to allow enforcement discretion, items imported before September 22, 1982, would not be able to be sold. This is a common sense revision to allow for the sale of items that are 100 years old or older but could not have been imported through a designated antique port.

• Strengthen Endangered Species Act Protection for African Elephants: We planned to propose removal of the Endangered Species Act (ESA) African elephant special (4d) rule (50 CFR 17.40(e)) that allows African elephant ivory to be traded in ways that would otherwise be prohibited by the ESA. This action would require publication of a proposed rule with an opportunity for public comment, followed by a final rule.

Update as of 5/15/14

We are re-evaluating this plan, and are now likely to develop a proposed rule to revise, rather than revoke, the special (4d) rule. Our intention is to minimize impacts on trade in African elephant parts and products other than ivory, and on non-commercial movement of musical instruments and certain other CITES pre-Convention specimens, that we do not believe are contributing to the poaching crisis or to illegal trade. This will also allow us to propose retaining important conservation-related provisions of the current special 4 (d) rule. We anticipate publication of a proposed rule during the summer of 2014.

• Reinforce International Controls on Wildlife Trade Domestically: We will finalize a proposed rule that will re-affirm, clarify and improve public understanding of the “use-after-import” provisions in U.S. CITES regulations, so as to reduce sales, including intrastate sales (i.e. sale within a state), of African elephant ivory, and other wildlife that was imported for noncommercial purposes.

Update as of 5/15/14

This action was completed on May 15, 2014, with the publication of a final rule revising U.S. CITES implementing regulations. This action was completed on May 27, 2014, with the publication of a final rule revising U.S. CITES implementing regulations. These revised regulations became effective June 26, 2014.

• Support Limited Sport-hunting of African Elephants: We will propose to limit the number of elephant sport-hunted trophies that an individual can import to two per hunter per year. To do this, we will publish a proposed or interim final rule with an opportunity for public comment to revise the 1989 AECA moratorium and create regulations under the AECA in our general wildlife import/export regulations (50 CFR Part 14).

Update as of 5/15/14

We will publish a proposed rule, with opportunity for public comments by the summer of 2014.

If these administrative actions are finalized, the following activities will be prohibited or restricted as a matter of enforcement discretion:

• Import of African elephant ivory except for certain items and purposes where the ivory item will not be sold, including sport-hunted trophies, ivory for law enforcement and scientific purposes, specified worked ivory items such as musical instruments, items in museums and other exhibitions, and items that are part of a household move or inheritance. 
• Commercial export of African elephant ivory except for bona fide antiques.
• Interstate sale (sale across state lines) of African elephant ivory except for bona fide antiques, or that which is accompanied by an ESA permit.
• Intrastate sale (sale within a state), of African elephant ivory except that which was lawfully imported prior to listing in CITES Appendix I (1990 for African elephant) and with no restrictions on its use after import or under a CITES pre-Convention certificate.

If these administrative actions are finalized, the following activities will be allowed or not restricted as a matter of enforcement discretion:

• Import, export, interstate and intrastate commerce of elephant ivory items that are documented to meet the strict criteria of the exceptions listed above.
• Import of up to two African elephant sport-hunted trophies per hunter per year.
• Possession of lawfully imported and acquired elephant ivory items.

IMPORTANT: Please note that this guidance is current (7/7/14), but we do anticipate additional actions in the coming months that will impact how elephant ivory can be traded (e.g. bought or sold) within the United States. Refer to our Elephant Ivory Trade Q&A page for the latest information.

1. There is no restriction on traveling across state boundaries with personally owned worked ivory, and provided the ivory keys are not sold across state lines or to a resident of another state, transferring the keys and back across state lines for paid repairs is not prohibited.
2. Selling worked ivory across state lines or to a resident of another state is considered interstate commerce and is prohibited under the United States Endangered Species Act (Act) and Director's Order 210. Worked ivory must meet specific criteria in order to be exempt from these prohibitions.

To determine whether the piano keys are exempt from the interstate commerce prohibition, the first step is to evaluate whether your items are made of African or Asian elephant ivory. Such proof can be in the form of a qualified appraisal or other documentation that definitively demonstrates the identification of the species through a detailed provenance of the article.

If your items are made from Asian elephant ivory and you wish to sell them across state lines (interstate commerce), you will need to be able to demonstrate that your ivory meets the definition of an antique--

To qualify as antique, the importer, exporter or seller must show that the item meets all of these criteria:

1. It is 100 years or older;
2. It is composed in whole or in part of an ESA-listed species;
3. It has not been repaired or modified with any such species after December 27, 1973; and
4. It is being or was imported through an endangered species “antique port.”

Under Director’s Order 210, as a matter of enforcement discretion, items imported prior to September 22, 1982, and items created in the United States and never imported must comply with elements A, B, and C above, but not element D.

If you can provide proof confirming that this ivory was imported prior to September 22, 1982 (for example, a datable photo of the owner with the item, a dated letter or other document referring to the item) you will not need to meet element D above.

If your items are made from African elephant ivory and you wish to sell them across state lines (interstate commerce), you will be able to sell your ivory if you can demonstrate that your ivory was lawfully imported prior to January 18, 1990 (the date that the African elephant was listed in CITES Appendix I). Again, this proof could be in the form of a datable photo, a dated letter or other document referring to the item.

If your items are made from African or Asian elephant ivory and you wish to sell them within a state (intrastate commerce), you will be able to sell your ivory if you can demonstrate that your ivory was lawfully imported prior to the date that the species was listed in CITES Appendix I (January 18, 1990 for the African elephant; July 1, 1975 for the Asian elephant). Again, this proof could be in the form of a datable photo, a dated letter or other document referring to the item.

You do not need to apply for a permit or contact our office to conduct these activities; however, you should have all documentation ready so that you can demonstrate the legality of the sale, if asked. We would also suggest that you pass along all documentation to the buyer of your elephant ivory items.

Please note that this guidance is current, but we do anticipate additional actions in the coming months that will impact how elephant ivory can be traded (e.g. bought or sold) within the United States. Refer to our Elephant Ivory Trade Q&A page for the latest information.

To summarize:

1. Gather documentation that identifies whether the ivory was derived from an African elephant or an Asian elephant. This can be done through a qualified appraisal or detailed provenance of the article.
2. Gather documentation, such as a datable photo or dated letter, that demonstrates that the ivory was lawfully imported prior to the species listing in CITES Appendix I (January 18, 1990 for the African elephant; July 1, 1975 for the Asian elephant) OR, if Asian elephant ivory to be sold across state lines, gather documentation that the items qualify as "antique".
3. Check the Elephant Ivory Trade Q&A page for any updates made since you received this guidance.
4. Check to make sure that you are also in compliance with local and state laws.
5. Proceed to sell your elephant ivory in compliance with all applicable laws.

What’s ahead (from the FWS)
Summer 2014: Publication of proposed rule, with public comment period, to revise the African elephant special rule [50 CFR 17.40 (e)])

We expect that this action will include a proposal to further restrict commercial export of worked African elephant ivory.

We expect that this action will include a proposal to prohibit interstate commerce in African elephant ivory.

Legislation governing the sale and possession of ivory continues to be introduced at a rapid pace throughout the United States. Since January, the following states have seen action taken to some degree on legislation related to ivory regulation: Vermont, Hawaii, Washington, Rhode Island, Iowa, Pennsylvania, Arizona, Connecticut, New York, and Indiana.

It's important to note that the proposed legislation varies greatly from state to state. Other states have introduced legislation prior to 2016 that is still pending. Most, but not all, of the proposed laws contain exemptions for musical instruments.

One of the best ways to get information about what's happening in a particular state is to visit www.legiscan.com. Scroll down to the lower left "National Legislative Search" and then select either a particular state or all states. Then enter the word "ivory" in the full text Search Box.

On the Federal Level, the House of Representatives passed HR 2406, the Sportsmen's Heritage and Recreational Enhancement Act. One of several amendments, proposed from the House floor, permits more than one U.S. Fish and Wildlife Service Law Enforcement Officer to be placed in a U.S. diplomatic or consular post in an African country to assist local wildlife rangers in protection of elephants

Ivory advocates called the passage a positive step toward spending more of its resources for saving endangered wild elephants where it will do the most good - on the ground - and with the people and institutions most affected by wildlife poaching. The SHARE Act now goes to the Senate for consideration.

The importance of following activity on the state level and reaching out to legislators to express the impact of the bill on you can't be overstated. Advocates have attributed much of the success in obtaining exemptions on the state level to one-on-one interaction between music industry representatives and legislators. PTG's official statement is available and NAMM occasionally updates legislation (and their responses). Outside of the music industry, elephantprotection.org also tracks legislation and provides resources.

In January, PTG representatives attended a meeting on ivory issues during the NAMM show. James Goldberg, NAMM's Washington DC based attorney, led the discussion.

At this point, US Fish and Wildlife anticipates publishing the final special rule on African Elephants in the second quarter of 2016. That proposed rule includes a de minimis exemption of 200 grams. USFW chose that weight, ".... because we understand that this is the approximate maximum weight of the ivory veneer on a piano with a full set of ivory keys and that this quantity would also cover most other musical instruments with ivory trim or appointments."

The proposed rule can be reviewed at www.regulations.gov. Goldberg said he was doubtful of the second quarter date and guess it would more likely become law in the third quarter. He also said he doubts many changes will be made to the proposed rule although there have been some discussions about musical instruments that don't fall under the exemption such as pipe organs.

At the state level, Goldberg said the music instrument industry has come out pretty well so far. Four states (New Jersey, New York, Washington and California) have legislation in place; all except New Jersey contain musical instrument exemptions. Goldberg said it appears Hawaii and Vermont will enact bills in 2016; both have musical instrument exemptions though not as "clean" as the music industry would prefer, he said. Massachusetts is currently considering ivory legislation and Ohio is also a strong possibility for legislation in 2016.

Several other states have seen legislation introduced. One of the best resources for checking activity at the state levels is to visit www.legiscan.com. Scroll down to lower left and check all states  and enter the keyword ivory. Goldberg, along with the rest of NAMM's legislative team, emphasized the importance of following activity on the state level and reaching out to legislators to express the impact of the bill. Goldberg attributed much of the success in obtaining exemptions on the state level to one-on-one interaction between music industry representatives and legislators.

PTG's official statement is available and NAMM occasionally updates legislation (and their responses). Outside of the music industry, elephantprotection.org also tracks legislation and provides resources.

Washington State has become the most recent state to adopt new ivory regulations. Initiative 1401 passed overwhelmingly in early November. The law includes exemptions for musical instruments similar to laws in California and New York.

In New Jersey a Senate bill (3416) that would have made possession of ivory a criminal offense was significantly amended during a Senate hearing. Significant opposition resulted in committee members removing ivory from the list of protected species and changing the criminal punishments provision to civil ones. The previously approved total ban on ivory sale and trade remains in place.

Several other states have seen legislation proposed governing ivory. Massachusetts has hearings underway and Oregon is seeing ivory ban supporters pushing for a voter initiative. NAMM has tracked many of those here (last update October 5). 
No final rule governing ivory has been published by the U.S Fish and Wildlife Service as of November 17. View the proposed rule.

National Geographic has an interesting article about ivory issues in China where the government has announced a ban after years of promoting the industry.

The new special rule governing African Elephant was published on July 29th. The comment period will extend through Sept 28th with all comments being reviewed by the US Fish and Wildlife Service. This website offers a link to the special rule and also provides instructions on how to comment. It also contains a very useful Q&A.
There are still a lot of questions but it appears that the piano industry came out about as well as it could have, due in part to the efforts of many PTG members. It appears that a 200-gram exemption figure in the proposal came about specifically to cover the approximate weight of ivory piano key veneers.

EXCERPT FROM THE USFW Q&A: The proposed rule provides an exemption from prohibitions on selling or offering for sale in interstate and foreign commerce certain manufactured items that contain a small (de minimis) amount of ivory that meet the following conditions:

1. If the item is located in the United States, the ivory must have been imported prior to January 18, 1990 or imported under a CITES pre-Convention certificate with no limitation on its commercial use. 
2. If the item is located outside of the United States, the ivory must have been removed from the wild prior to February 26, 1976. 
3. The ivory is a fixed component or components of a larger manufactured item and not the primary source of the value of the item. 
4. The ivory is not raw. 
5. The manufactured item is not made wholly or primarily of ivory. 
6. The total weight of the ivory component or components is less than 200 grams.
7. The item must have been manufactured before the effective date of the final rule.

It goes on to say, "We have chosen 200 grams as the weight limit because we understand that this is the approximate maximum weight of the ivory veneer on a piano with a full set of ivory keys and that this quantity would also cover most other musical instruments with ivory trim or appointments."

Also, "While we have given careful consideration to the types of items containing African elephant ivory for which we could allow continued commercialization in interstate and foreign commerce (because we do not believe the trade is contributing to the poaching of elephants and we believe the risk of illegal trade is low) we seek comment from the public on the specific criteria we have proposed to qualify for this de minimis exception."

On the downside, one attorney who has led opposition to the new ivory regulations said "My understanding is the 200-gram figure was specifically to include the approximate weight of piano key veneers. In this sense, you're given half a loaf. You can sell the piano if you have appropriate documentation, but you can't repair or refurbish it with ivory. The final approval of this Federal law is NOT the end of the ivory issues. States may adopt more restrictive laws and ban intrastate sales. It would appear that many states were waiting to see what the federal proposals would be and we can expect respective legislatures to revisit the legislation when they next convene".

PTG will reserve judgement until the federal law becomes final. If and when states enact their own regulations, we would continue to encourage members to seek a similar de minimis exception that presently exists at the federal level.

As April moves past the halfway point, the number of states where ivory ban legislation has been introduced stands at 13. The National Association of Music Merchants (NAMM) has posted a state-by-state breakdown and status of the proposals. In some cases, the list also includes an official statement from NAMM with a list of concerns specific to the musical instrument community.

As of April 16, there has been no publication of a final rule regarding ivory regulations by the United States Fish and Wildlife Service. They maintain a Q and A section at www.fws.gov/international/travel-and-trade/ivory-ban-questions-and-answers.html

In addition to the NAMM site listed above, elephantprotection.org offers lists of legislation at the state level. Also, you can search for your federal and state elected officials and view a model letter to send them.

PTG has an official statement available to all members that outlines concerns and offers hope that legislation can be crafted to stop the illegal poaching of elephants and also preserve the musical history and integrity of these pianos and their owners. This statement is available to members for their use. PTG encourages members in all states to make themselves aware of proposed legislation and encourages members to contact their state legislators to voice their opinions. 

The list of states currently considering ivory ban legislation continues to grow. As of March 10, ivory ban legislation has now been introduced in at least 10 states. The current status and proposed legislation varies from state to state with some providing exemptions for musical instruments and others implementing a total ban. A list with links to individual state information is available at elephantprotection.org. There has also been no movement by the United States Fish and Wildlife Service toward implementing new federal regulations but sources expect new regulation changes will be published for comment in the next six weeks or so. More information is available at fws.gov.

As noted in the February E-News, Alaskan Congressman Don Young has introduced H.R. 697 with Congressman Collin Peterson (D-MN) to roll-back and halt restrictions on lawfully possessed ivory products. No updates had been reported as of March 10.

PTG has an official statement available to all members that outlines concerns and offers hope that legislation can be crafted to stop the illegal poaching of elephants and also preserve the musical history and integrity of these pianos and their owners. This statement is available to members for their use. PTG encourages members in all states to make themselves aware of proposed legislation and encourages members to contact their state legislators to voice their opinions.

Alaskan Congressman Don Young has introduced bipartisan legislation with Congressman Collin Peterson (D-MN) to roll-back and further halt onerous constraints on lawfully possessed ivory products, including musical instruments, firearms, knives, and museum pieces that include ivory parts.

Alaskan Congressman Don Young has introduced bipartisan legislation with Congressman Collin Peterson (D-MN) to roll-back and further halt onerous constraints on lawfully possessed ivory products, including musical instruments, firearms, knives, and museum pieces that include ivory parts.

The African Elephant Conservation and Legal Ivory Possession Act of 2015, HR 697, would effectively end the U.S. Fish and Wildlife Service's draconian and unilateral moratorium on the sale and trade of lawfully possessed ivory, while also making significant efforts to assist anti-poaching efforts in countries with elephant populations.

Many states continue to debate proposed ivory legislation. As of February 11, PTG is aware of proposals in Hawaii, Oklahoma, California, Washington, Iowa, Maryland and Connecticut. Many state legislatures are in session which means more bills could be introduced. In Virginia, a proposed bill was rejected at the request of one of the original Senators who sponsored it after an alliance of organizations testified about the issues it would cause. In Washington State, PTG member George Mounce, III, RPT, testified before the committee about their proposed bill and also followed up with a personal meeting with the State Senate Committee Chair. In that meeting, Mounce demonstrated, using key heads and tails, how little ivory is on a piano, and talked about the economic impact and problems of enforcement of the proposed legislation. Mounce reported a favorable response to his testimony and from the committee chair.

PTG has an official statement available to all members that outlines concerns and offers hope that legislation can be crafted to stop the illegal poaching of elephants and also preserve the musical history and integrity of these pianos and their owners. This statement is available to members for their use.

PTG encourages members in all states to make themselves aware of proposed legislation and encourages members to contact their state legislators to voice their opinions. Members can visit elephantprotection.org to learn about the specifics of legislation at the state level. Also, you can search for your federal and state elected officials and view a model letter to send to them.

• Rep. Steve Daines introduces House Bill HR 5052, the Lawful Ivory Protection Act of 2014. The bill enjoys bipartisan support from 22 Representatives. It was referred to committee and no action was taken before the new House convened in January 2015.

• In addition, Sen. Lamar Alexander introduced identical legislation (S. 2587) in the Senate. It attracted once co-sponsor, was read twice and referred to committee. No additional action was taken before the new Senate convened in January 2015.
• As of August 12, both New York and New Jersey signed bill prohibiting the sale of ivory within their borders.

The New York law includes exemptions for all musical instruments made before 1975. Some other exemptions are also allowed depending on circumstances. The New Jersey law has no exemptions and prohibits state residents from buying, selling, importing and possessing ivory and rhino horns with the intent to sell. Existing objects owned by New Jersey residents “can be donated to a nonprofit, a museum, or they can allow it to pass through their estate. Dealers must remove all ivory from showrooms/etc.

• On October 17, 2014, Ashley Turner, RPT, read a statement to the Advisory Council for Wildlife Trafficking on behalf of the more than 3,500 members of the Piano Technicians Guild. In part it says, "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."
• PTG Vice President Phil Bondi, RPT, wrote a report of PTG's involvement in issues related to the proposed ivory ban. As the appointed representative for PTG, he says there are two things he wanted to make sure got across to the Fish and Wildlife Service (FWS) people: The PTG is against the illegal poaching of ivory and criminalizing pianos owners of legally obtained ivory is not only wrong but doesn't save one elephant from poaching.
• The U.S. Fish and Wildlife service has rolled back its date for (Publication of proposed rule, with public comment period, to revise the African elephant special rule [50 CFR 17.40 (e)]). Originally schedule for late summer of 2014, the date was pushed back to late 2014 and has not been updated since January 1, 2015.
• Since January 1, 2015 at least eight states have introduced legislation related to banning the commercial trade of ivory, including:
  Washington, Connecticut, California, Iowa, Maryland, Oklahoma, Hawaii, Virginia (since struck down 13-0, in committee at the request of the original sponsor after hearings)

This list is subject to change, so visit elephantprotection.org to see the most recent list of state ivory ban bills.

On Jan 18, 2015, the Toledo Blade published an article about the ongoing struggle of musicians dealing with regulations related to traveling with instruments.