New Draft Ivory Rules Address Musical Instruments

July 27, 2015

President Obama has announced a new round of draft rules to implement a near-total ivory sales ban in response to the global poaching and trafficking threat to African elephants. In February of 2014, the Administration had announced that new rules limiting domestic sales were on the way, and also immediately implemented new restrictions related to international travel. The proposed rules that have just been released for public review and comment primarily address domestic commerce, would make some new changes for travel, and include some important accommodations that have been requested by the League and our partners in the broader music community since plans for the ban were first announced last year.

The League has been actively weighing in with policy leaders and stakeholders as proposals take shape, and informing orchestras of the immediate impact of policy changes. In announcing the proposed rules, which would reverse a current travel restriction and provide certain opportunities for ongoing domestic commerce in musical instruments, the U.S. Fish and Wildlife Service (USFWS) stated that it, "consulted extensively with groups that may be impacted by new trade controls for ivory, including professional musicians" and said that the proposal "recognizes that legal trade in these items does not contribute to the current poaching crisis."

The music community supports the goals of wildlife conservation and combating illegal trade in ivory and other protected species. In partnership with the broader music community, the League is in ongoing dialogue with the Administration and key policy leaders to seek solutions that address wildlife conservation goals while also protecting musical activity that is supported by musicians' tools of their trade.
 
These new regulations are in draft form, and will not go into effect until the public has an opportunity to comment on the new policies.  After public comments are taken into consideration, the proposed rules may be further altered before they are finalized and enforced. The League is still analyzing the new rules, will comment on behalf of the field of orchestras, and will prepare orchestras to respond directly to this important opportunity to weigh in. The rules will be formally posted for public comment on July 28, and remain open for comments until September 28, 2015. As we explore the details further, here are some highlights related to musical instruments:

  • For international travel, the proposed rule would grant a request of the music community by removing the current prohibition on travel with musical instruments legally purchased after February 25, 2014 that contain African elephant ivory. The remaining travel requirements which have been in effect for more than a year, would continue to apply. This removal of the purchase date restriction would be a significant improvement over current policy. Further requests of the music community related to easing international travel will be under consideration in separate rule-making procedures, and as the Convention on International Trade in Endangered Species (CITES) is re-negotiated in 2016.
  • For domestic interstate commerce, the proposed rule would allow the future sale of musical instruments that contain "de minimis" amounts of ivory (less than 200 grams), and that were legally crafted and legally imported. Allowances would also be made for qualified antiques, 100 years old or older. Sales within states would remain subject to any additional state commerce laws. For instruments less than 100 years old, the following requirements would apply:
  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.

Among the variety of musical instruments that have been previously made with small quantities of ivory, the most common are bows used for stringed instruments, which may have a piece of finished ivory on the protective tip.  The quantity of ivory in a bow tip weighs on average 0.25 grams. Embellishments on bassoons and stringed instruments, and the veneer of piano keys use larger quantities. In the proposed rules the USFWS says, "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."

The Q & A on the proposed rule offers the following example of how the rules would apply to musical instruments:

Example scenario:

I have a violin bow that contains a small amount of ivory. Under the proposed revisions, will I be able to sell the bow in the United States, export it for sale, or take it overseas for a concert? 

If the bow meets the requirements for the de minimis exception, including that the ivory was removed from the wild prior to February 26, 1976, and that the total weight of the ivory is less than 200 grams you will be able to sell it in the United States.

If the bow qualifies as an ESA antique you will be able to export it for sale.

If the bow meets the requirements for import/export of a musical instrument, including that the ivory was removed from the wild prior to February 26, 1976, it is accompanied by a CITES musical instrument certificate or equivalent CITES document, the bow is securely marked or uniquely identified, and it will not be sold or otherwise transferred while outside the United States (see paragraph (e)(4) in the proposed rule text for details) you can travel with it internationally for personal use, including to perform in concert.

The League is analyzing the proposed rules for a more complete understanding of their full impact. The removal of one travel restriction would be very helpful, and the opportunity to allow future commerce in legally crafted musical instruments is also encouraging. As we continue to examine the specific details of the proposed new rules, we will take into account whether the documentation requirements for qualifying for an exemption are affordable and accessible, and the implications of implementing an exemption based on weight rather than volume, which is more easily measured.

Thank you for your ongoing, effective advocacy on this complicated and important topic! Our website provides additional detail and context about this policy area and the League will soon provide more information about how to participate in the public comment period on these rules.