Ivory Ban Impact on Orchestras
UPDATED OCTOBER 1, 2015
Ivory Rules Implemented February 2014, Revised May 2014
Following an Obama Administration effort to protect African elephants from poaching by combating illegal trade in ivory, the director of the U.S. Fish and Wildlife Service (USFWS) ordered strict enforcement procedures related to the Endangered Species Act and the African Elephant Conservation Act on February 25, 2014. According to this order, many instruments containing African elephant ivory would not be allowed into the U.S., even if a musician were simply returning to the U.S. with instruments in their personal possession, not intended for sale. The original order prevented travel into the U.S. with instruments containing ivory that had been purchased since February 26, 1976. A great many musical instruments containing African elephant ivory, while legally manufactured and acquired, have been purchased after 1976, and would have been completely prohibited from entering into the U.S. It is not uncommon for professional orchestra musicians, particularly string players, to perform with instruments that contain small amounts of ivory, most frequently found in the tips of bows. African elephant ivory can also be found in an array of older string, wind, and percussion instruments; however, there is no longer a demand for using elephant ivory to create new instruments.
In response to urgent appeals from the League and other national stakeholders, U.S. Fish and Wildlife agreed to ease the restrictions on musical instruments. Director’s Order 210 was amended on May 15, 2014 to allow travel with instruments purchased prior to February 25, 2014 that contain African elephant ivory.
Under the current rules, a musical instrument that contains African elephant ivory may only be brought into the U.S. if the worked African elephant ivory meets all of the following criteria:
- The African elephant ivory contained in the instrument was legally acquired prior to February 26, 1976;
- The instrument has not subsequently been transferred from one person to another person for financial gain or profit since February 25, 2014;
- The person or group traveling with the instrument qualifies for a Convention on International Trade in Endangered Species (CITES) musical instrument certificate; and
- The musical instrument containing African elephant ivory is accompanied by a valid CITES musical instrument certificate or an equivalent CITES document.
While widening the scope of instruments eligible for travel across U.S. borders is a step in the right direction, orchestras have asked U.S. policy leaders to address the following:
- Remove the restriction on travel with musical instruments purchased after February 25, 2014.
- A reliable system has not been built for obtaining CITES passports and navigating complicated enforcement procedures at U.S. ports of entry and departure, and across the globe. The costs, uncertainty, and risks associated with attempting to travel with permits is a barrier to international cultural activity.
- Provide accommodations for musical instruments as U.S. Fish and Wildlife adopts new restrictions on domestic sale and re-sale of ivory. Legally-crafted instruments that contain very small amounts of ivory are not contributing to the poaching crisis, and prohibiting their sale may strip essential musical instruments of their value, and render them unavailable for use by future generations of musicians.
New Rule Proposed July 2015 Makes Allowances for Musical Instruments
On July 25, President Obama announced draft regulations that would formalize the 2014 Director’s Order related to both international travel and domestic commerce, making certain accommodations for musical instruments. In announcing the proposed rule to reverse current travel restrictions and provide certain opportunities for ongoing domestic commerce in musical instruments, the 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.” These new regulations are in draft form, and will not go into effect until a final rule is announced. After public comments are taken into consideration, the proposed rule may be further altered before it is finalized and enforced. The League has submitted comments on behalf of the field of orchestras in response to this important opportunity to weigh in. Here are some highlights from the proposed rule, 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 outlined above, 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 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:
- 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.
- If the item is located outside of the United States, the ivory must have been removed from the wild prior to February 26, 1976.
- The ivory is a fixed component or components of a larger manufactured item and not the primary source of the value of the item.
- The ivory is not raw.
- The manufactured item is not made wholly or primarily of ivory.
- The total weight of the ivory component or components is less than 200 grams.
- 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 rule 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 rule would apply to musical instruments:
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 music community is fully committed to the goals of wildlife conservation and combating illegal trade in ivory and other protected species. We are asking for a reasonable solution that protects the domestic and international use of musicians’ tools of their trade, and preserves the use of historically and legally made instruments now and for future generations to come. The League is in ongoing dialogue with the Administration and key policy leaders to continue to seek solutions that address wildlife conservation goals while also protecting international musical activity that requires musicians to travel across borders with the tools of their trade. 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. Following are highlights of the comments filed by the League of American Orchestras to US Fish and Wildlife, in response to the proposed rule:
- We applaud USFWS for acknowledging numerous times in the draft regulations that "trade in the types of manufactured items that would qualify for this proposed de minimis exception is not contributing to or driving the illegal ivory trade.”
- We support the proposal to allow the future domestic interstate sale of musical instruments that contain "de minimis" amounts of ivory. Clarifications in the final rule will ensure that this exception will protect cultural activity.
- The proposed threshold for qualifying for the "de minimis" standard for domestic interstate commerce is 200 grams. While this amount covers a wide array of musical instruments that contain ivory, it may not cover some bagpipes as well as instruments with multiple keyboards, such as organs.
- We prefer a measurement by volume, as it may be difficult to assess the weight of ivory parts without dismantling fragile instruments.
- We support flexibility on documentation that will affirm that musical instruments meet the proposed requirements.
- We ask that USFWS provide clarification regarding the opportunities for repairing the ivory content of musical instruments.
- We ask that USFWS consider applying the de minimis exemption for musical instruments to export for commercial sale.
- The proposed rule includes exemptions for exhibitions by museums. We request that orchestras and other 501(c)(3) cultural organizations be considered eligible for exemption under this, or a separate future rulemaking process.
- The proposed rule would remove the current restriction on non-commercial travel into the U.S. with instruments were purchased after February 25, 2014 that contain African elephant ivory. We strongly support this substantial policy improvement.
- Further improvements are urgently needed for international travel with musical instruments that contain protected species material. We look forward to the opportunity for continued communication with USFWS as new travel-related policies are crafted, and urge U.S. permit, port, and enforcement agencies to adopt immediate solutions that will support ongoing international cultural exchange.
This site will be updated as next steps toward issuing final ivory ban rules unfold.
League of American Orchestras Statements:
- League Responds to USFWS Proposed Rule for the African Elephant (September 28, 2015)
- League Comments on US Agenda for International Treaty Negotiations (July 10, 2015)
- League and ICSOM Submit Joint Testimony to House Cmte re: Ivory and Musical Instruments (July 8, 2014)
- National Music Community Fact Sheet on Ivory in Instruments (June 26, 2014)
- League Comments to Advisory Council on Wildlife Trafficking (June 9, 2014)
- League Comments to Advisory Council on Wildlife Trafficking (March 20, 2014)
- Proposed African Elephant Ivory Rule (July 2015)
- USFWS Q & A on Proposed New Rules (July 2015)
- USFWS Summary of Current Ivory Rules (July 2015)
- Symphony article: “Saving Elephants—and Instruments” (October 2014)
- Kristin Linfante, ED of Chamber Music Pittsburgh and Violist in Apollo’s Fire describes ivory ban’s impact on musicians (January 18, 2015)
- The Director's Order (February 2, 2014)
- REVISED Director’s Order (May 15, 2014)
- Fish and Wildlife Service Ivory Ban Q & A, including section on Musicians and Musical Instrument Manufacturers
- Further Background from U.S. Fish and Wildlife Service
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