Recording Academy Work Clarifies Rule
For Musical Instruments Containing Ivory
Since February 2014, the Obama Administration has been working hard to combat the African elephant poaching crisis by crafting regulations to impose a near-total ban on the commercial trade of African elephant ivory. The music community has championed conservation and artists have been outspoken in the effort to save these beautiful animals. At the same time, The Academy sought to ensure that the Administration’s new rules would not have any unintended consequences for musicians who possess older instruments, such as violin bows or guitars, that happen to contain small amounts of ivory but have no impact on the illicit ivory trade.
For the past two years, The Recording Academy, working with partner organizations like the League of American Orchestras, NAMM, and the American Federation of Violin and Bowmakers, has engaged constructively with The White House, Congress, the U.S. Fish & Wildlife Service (USFWS), and the U.S. Department of the Interior to make certain that the final regulations include reasonable accommodations for pre-existing musical instruments that contain small amounts of ivory. The Administration released the final rules on June 2 and it is gratifying to note that they take into account the concerns of The Recording Academy.
The final rule affirms that musical instruments do not contribute to elephant poaching or the illegal ivory trade. In announcing the rule, USFWS Director Dan Ashe stated, “We listened carefully to the legitimate concerns raised by various stakeholder groups and, as a result, are allowing commonsense, narrow exceptions for musicians, musical instrument makers and dealers … to trade items that have minimal amounts of ivory and satisfy other conditions. These items are not drivers of elephant poaching and do not provide cover for traffickers.”
The final rule removes a current restriction on international travel with musical instruments purchased after Feb. 25, 2014, that legally contain African elephant ivory. By July 6, USFWS will issue a revised Director’s Order clarifying the policy change, and musicians who purchased instruments after Feb. 25, 2014, that legally contain ivory will be eligible to apply for a travel permit. Under the new rules, a musical instrument that contains African elephant ivory may qualify for a travel permit if the African elephant ivory contained in the instrument meets all of the following criteria:
- The African elephant ivory contained in the instrument was legally acquired and removed from the wild prior to Feb. 26, 1976;
- The instrument containing worked ivory is accompanied by a valid Convention on International Trade in Endangered Species (CITES) musical instrument certificate or equivalent CITES document;
- The instrument is securely marked or uniquely identified so that authorities can verify that the certificate corresponds to the musical instrument in question. A photograph may be used to identify an item, in place of a mark, as long as the photograph allows a border official to verify that the certificate and the item correspond; and
- The instrument is not sold, traded, or otherwise disposed of while outside the certificate holder’s country of usual residence.
The final rule also allows for domestic interstate and foreign commerce for musical instruments that contain “de minimis” amounts of ivory of less than 200 grams of ivory (less than in most musical instruments, including pianos) that were legally crafted and legally imported. Allowances are also made for qualified antiques, 100 years old or older. Sales within states (intrastate commerce) remain subject to any additional state commerce laws. For instruments less than 100 years old, the following requirements would apply:
For instruments located within the United States, the ivory must have been imported into the United States prior to Jan. 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;
For instruments located outside the United States, the ivory must have been removed from the wild prior to Feb. 26, 1976;
- The ivory is a fixed or integral component or components of a larger manufactured or handcrafted item (e.g. tuning pegs) and is not in its current form the primary source of the value of the overall item, that is, the ivory does not account for more than 50 percent of the value of the item;
- The ivory is not raw;
- 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;
- The total weight of the ivory component or components is less than 200 grams*; and
- The item was manufactured or handcrafted before July 6, 2016.
*USFWS offers the following guidance regarding the 200-gram limit:
“When we proposed the 200-gram limit we had a particular suite of items in mind. The following types of items may qualify for the de minimis exception: many musical instruments (including many keyboard instruments, with ivory keys, most stringed instruments and bows with ivory parts or decorations, and many bagpipes, bassoons and other wind instruments with ivory trim) … A piece of ivory that weighs 200 grams is slightly larger than a cue ball. The 200-gram limit is large enough to accommodate the white key veneers on an 88-key piano.”
Some bagpipes and instruments with multiple keyboards may fall outside of the 200 gram limit.
The final rule includes the following important clarification about federal enforcement priorities, making clear that musicians acting in good faith will not be the target of new enforcement activity:
“Our law enforcement focus under this rule will be to help eliminate elephant poaching by targeting persons engaged in or facilitating illegal ivory trade. While it is the responsibility of each citizen to understand and comply with the law, and that is our expectation with regard to this regulation, we do not foresee taking enforcement action against a person who has exercised due care and reasonably determined, in good faith, that an article complies with the de minimis requirements.”
Ending the scourge of elephant poaching is vital and The Academy applauds the Administration for taking aggressive steps to stop it. It is notable that the Administration agrees with The Academy that it can accomplish this important goal without impacting the livelihoods of working musicians who rely on often irreplaceable musical instruments as the tools of their trade.
The final rule takes effect on July 6, 2016.
For more detailed information, consult the following links: