Ivory rules cause problems for Chicago Symphony

Unless you read the White House Blog daily, you no doubt missed a quiet but monumental announcement. On February 11, 2014, the White House issued an executive order essentially banning international trade in items containing ivory, as well as tightly controlling movement of personally owned items containing ivory. Two weeks later, on February 25, 2014, Dan Ashe, director of the U.S. Fish & Wildlife Service, released Director’s Order 210 giving the draconian details of implementation. The executive order and director’s order were immediately enforced, including being applied to CITES (Convention on International Trade in Endangered Species) import and export applications filed months earlier. Restrictions on intrastate and interstate sales and movement were announced on May 15, 2014, along with other revisions discussed below. The Executive Branch and the U.S. Fish & Wildlife Service have ignored federal requirements for publication of proposed regulations and public comment before enforcement.

You have perhaps learned, e.g., of violin bows belonging to members of touring European orchestras being confiscated upon entry to the United States, or of the refusal to give a CITES permit for the import of a significant harpsichord by a United States collector/performer. The new regulations are being enforced through immovable, irrational requirements that ignore personal property rights of owners of legally acquired items containing ivory. Further complicating the situation are diverse actions by individual states, in particular, New Jersey, New York, and California. These actions have far-reaching effects among musicians, collectors, musical instrument dealers and repair people, and everyday citizens.

According to President Obama, the United States needs to “lead by example” with tough restrictions on all trade and movement of ivory. It is unclear why any country—especially China, the primary and nearly sole market for illegal new ivory—would be influenced by restrictions in the United States. The U.S. Fish & Wildlife Service has acted, in their words, “to close the loopholes” of transportation and markets for illegal new ivory in the United States, theoretically reducing pressure on elephant populations.

The illogic of thinking a legally acquired musical instrument, or ivory-inlaid 17th- or 18th-century furniture, or ivory Torah pointers, or knives or canes containing antique or pre-Convention (1976) ivory would be conduits for new ivory seems apparent to us, but the new regulations are rigidly defended by the U.S. Fish & Wildlife Service staff. Director Dan Ashe also states that they cannot tell new from old ivory thus justifying their methods (guilty until proven innocent, yet worse), a statement that has experts and repair people familiar with antique ivory shaking their heads in strong disagreement. In truth, I think he is speaking more to the lack of expertise among inspectors. In the United States, there are few instances of trade in illegal new ivory, though a few notable episodes have helped fuel this maelstrom, one involving faked African antiques in Philadelphia, and another of faked Asian antique figurines in New York City. Both were caught by appropriate profiling of the merchants and thorough investigations. The nets are being cast far wider now, and being visible targets, musical instruments have been particularly persecuted.

So, why the urgency and drama? The story is that the African elephant is in dire danger of losing 1/5 of their population over the next twenty or thirty years and then extinction. Beware the numbers appearing in seemingly reputable publications, as incorrect, unsubstantiated figures are being propagated. In stark contrast, looking at CITES’ own recent reports,¹ there are currently about 500,000 African elephants in Africa, down from a probable 600,000 in 1989.² About 22,000 elephants have been killed in each of the last several years, an admittedly horrific number, but actually decreasing, not increasing as claimed. 

According to the CITES report referenced above, the poaching rate appears to have leveled off and further affirms that poaching is primarily due to “extreme poverty and lack of governance in the affected areas.” Local farmers and corrupt game wardens earn huge payments for leading poachers to their prey. In some countries elephants are already at risk, while in others they are over-populated, causing serious problems by destroying farmers’ crops and overgrazing their own protected preserves. In these countries, culling is necessary. Their governments want to sell their large ivory stores in a controlled fashion, to raise money for the local human and elephant populations. A regular source of legal ivory sales would dramatically bring down prices and deter the brutal and horrific practice of poaching.³

Prior and current rules 

(These are subject to change.)

Previously there were no domestic restrictions for sales or travel of items containing ivory and CITES permits could be acquired for import and export of legally acquired ivory by following instructions, paying a fee, and filling out paperwork, a somewhat onerous but do-able process. Exemptions were granted allowing import or export of items that could be demonstrated to be antique (over 100 years old), or pre-Convention (1989 for African elephant ivory). All of this changed in February. “Commercial” imports of ivory are forbidden. Period. No exceptions. Exports are limited, but the hoops to jump through have made permits virtually impossible to acquire. As of May 25, 2014, the details of the regulations were eased somewhat thanks to various musical instrument related organizations with lobbyists working tirelessly in Washington, D.C., but the limitations and requirements are still unreasonable and unclear and were expanded to severely restrict sales within states and across state lines.

The most up to date summary can be found at www.fws.gov/international/travel-and-trade/ivory-ban-questions-and-answ…. Remember while reading this web page and the explanations of it below, that qualifying for the CITES documents is extremely difficult. Here is the summary, with remarks about qualifying for the exemptions below.

Commercial imports

Forbidden. If you buy an instrument out of the country, you will not be able to get it into the United States. Note that the term “commercial” is being applied to any transaction that could be conceived of as resulting in a financial gain. For example, if you want to import an instrument and donate it to your favorite institution, they consider that commercial, since you may be applying for a tax deduction for the donation. Instruments bought overseas before the ban was announced, but awaiting their import permits, had their permits abruptly rejected. 

Personal imports 

You may import an item containing ivory as part of a household move or inheritance, or as part of your own musical instrument or as part of a traveling exhibition as long as the item contains “worked elephant ivory that was ‘legally acquired’ and removed from the wild prior to February 26, 1976 and has not been sold or otherwise been transferred for financial gain since February 25, 2014.” Thus you will not be able to bring in (or out) of the country any ivory-containing item that was purchased after February 25, 2014. (This is at least a significant improvement of the original specification of not being transferred for financial gain after 1976!) This freezes instrument ownership for touring musicians and amateurs as of the date of the Director’s Order. Additionally, the individual or group must qualify for a CITES musical instrument certificate and the musical instrument containing worked elephant ivory “must be accompanied by a valid CITES musical instrument certificate or equivalent CITES document.” The instructions do not specify what would qualify as an equivalent document. 

Commercial export 

While the rules state that pre-Convention and antique items containing worked ivory may be exported, in reality the new requirements to qualify for a CITES export certificate are extremely difficult-to-impossible to satisfy. Fortunately, in May they did eliminate two of the most ridiculous aspects of the February 25th Director’s Order, wherein 1) no domestically made items containing worked ivory could qualify, and 2) the exporter had to supply evidence that the item had entered through one of the “specified ports” for ivory import/export, despite the fact that these ports did not exist before 1982. If the ivory was repaired or modified after 1973, it will not qualify. If the item was originally imported after 1982, then it must demonstrably have been imported through one of the 13 ports of entry designated for antiques made of Endangered Species Act-listed species (Boston, Massachusetts; New York, New York; Baltimore, Maryland; Philadelphia, Pennsylvania; Miami, Florida; San Juan, Puerto Rico; New Orleans, Louisiana; Houston, Texas; Los Angeles, California; San Francisco, California; Anchorage, Alaska; Honolulu, Hawaii; and Chicago, Illinois).

To qualify under the antique exemption, the exporter must document the item’s age and identify the species used. Proof of age can be through scientific testing at an accredited laboratory or facility, a qualified appraisal, or provenance through other documentation, such as a detailed history of the item, family photos, ethnographic fieldwork, or other evidence that assigns the work to a known period of time. Fortunately, most musical instruments can be dated quite accurately. The species can be identified through DNA analysis (but this is unusable as the large quantities required would destroy that part of the musical instrument), or a qualified appraisal or other documentation that demonstrates the identification of the species through a detailed provenance. In practice, there have been difficulties with Fish & Wildlife permit examiners insisting on satisfying all of these dating and species methods and requiring a description of the “scientific method” used to make the species determination. Note that there are visual ways to identify the different types of ivory, except that Asian and African elephant cannot be visually distinguished. (See www.fws.gov/lab/ivory_id.php and www.fws.gov/policy/do210A1.pdf.)

Again, the ivory must not have been “repaired or modified.” U.S. Fish & Wildlife agents reviewing applications are insisting on full details of restorations, not just whether the ivory was repaired. This despite that in reality, restorers do not need to, want to, or use (expensive, illegal) new ivory. There are synthetics and ample supplies of surplus antique ivory, e.g., in the form of old piano key tops. Regardless, as the rules are written, if the ivory was repaired, they can refuse the application even if you just filled a crack with dental epoxy. Whether having glued a piece back on would result in denial is unclear.

The burden of proof has been laid heavily on the exporter in an “all are guilty until proven innocent” fashion. Fish & Wildlife agents reviewing applications since February have been virtually impossible to satisfy. Some insist appraisers are trained in biology or wildlife forensics. The director has told them they don’t have to believe any documentation and to “set a high bar.” This writer, who has been importing and exporting antique pianos for over ten years, was informed that the common knowledge, as well as published information, that piano key tops were made from African elephant ivory, was now insufficient. This was despite pointing out that I was initially told by a Fish & Wildlife official years ago that African elephant ivory (Loxodonta africana) was the correct species to specify for ivory key tops and all my other previous applications were all accepted stating this species.

The Musical Instrument Certificate or “Passport”

After being besieged by concerned touring musicians, the U.S. Fish & Wildlife Service and CITES created a new permit certificate for people traveling regularly with their instruments, called the Musical Instrument Certificate or “Passport.” The application is available on the Fish & Wildlife website (www.fws.gov/international/pdf/permit-application-form-3-200-88.pdf).

They require a signed appraisal or other documentation to demonstrate the age of the ivory-containing item, which must pre-date 1976. You must also include a signed statement (though it does not say signed by whom) that the item has not been repaired or modified on or after December 28, 1973, with any part of any species covered by the Endangered Species Act. That should suffice for antiques (over 100 years old), but for export of younger items, it additionally says the applicant must also state whether the item was bought, sold, or “offered for sale by you or anyone else” since December 28, 1973, in which case “there may be a need for additional information and the Division of Management Authority will contact you directly.”

Confusingly on the form, this last category is apparently not applicable if your instrument includes African elephant ivory. What is worrisome is that the wording opens the door to interpretation by the examining agent to not allow the export at all if the subject item contains elephant ivory. Additionally worrisome is the inclusion of a note that African elephant ivory removed from the wild after February 4, 1977, is not considered to be pre-Convention (for the purposes of this application, since it most certainly is in the rest of the world). Given the recent difficulty in establishing the species of elephant to the satisfaction of the USFWS agents, it will likely be difficult to get approval for any personal musical instrument containing ivory to travel.

Note that you need a different CITES form for each endangered species in your instrument, including rosewood and tortoiseshell. Also note that you and your instrument will need to exit and enter the country ONLY through one of the 13 designated ports for ivory: www.fws.gov/le/designated-ports.html.

If your instrument contains a listed endangered plant species, you are further restricted to exit and enter through a designated port for listed plant species: www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/cites.p….

Obviously this makes travel arrangements even more complicated and there are no plans to expand on the number of designated ports.

A fee of $75 is due with the application, which can take 45–60 days or more for approval, processing, and return. The certificate is good for three years, but you must bring the instrument back into the issuing country before it expires, at which point you can apply for a new certificate.

For all forms applicable to musical instruments, see: www.fws.gov/international/permits/by-activity/musical-instruments.html.

Domestic: intrastate and 

interstate trade and movement

Beginning on June 26, 2014, domestic sellers of items containing worked African elephant ivory must demonstrate that any item offered for sale—whether across state lines or within a state—was lawfully imported prior to the CITES Appendix-I listing of the African elephant (January 1990) or under a CITES pre-Convention certificate. Appendix-I covers species around the world most at risk as a result of international trade. Non-commercial movement is still allowed. There has been no clarification of how commercial may be defined beyond sale or what documentation is needed for such things as household moves. Some fear that traveling over state lines to perform at a paid concert could be considered a commercial transaction. Emphasis seems to be on sales, but given the vagueness of the rules both to the populace and the U.S. Fish & Wildlife Service agents, and recent aggressive enforcement, it is a concern. At least one piano transport truck has already been stopped and questioned with the result that the firm will no longer move pianos with ivory key tops. Another said they would just leave any questioned piano on the roadside and keep going. 

Unfortunately for musicians and others involved with legally obtained pre-Convention ivory, public support for the ban is being fanned with false numbers, hysteria, dramatic photos, and endorsements by celebrities who apparently can’t do the simple research required to discover the truth. For example, the performer Billy Joel publicly requested people save elephants by not having their pianos made with ivory keys, apparently unaware that no pianos have been made with ivory key tops in the United States since 1956 and in Europe since the 1980s. It appears that there is massive funding for public “awareness” and high-level political influence by some large conservation groups.

California, New Jersey, and New York State

Individual states have begun a hodgepodge of their own restrictions. In spring of 2012 California began to enforce a law that has been on their books since 1970 by raiding an auction house in northern California and seizing approximately $150,000 worth of ivory objects. This law has no exemption for antique and pre-Convention ivory and criminalizes possession with intent to sell, with stiff penalties. Introduced on May 8, 2014, both houses of New Jersey’s legislature quickly and quietly passed a draconian bill signed by Governor Christie on August 1, 2014. This law includes elephant, hippo, mammoth (which has been legally used to substitute for elephant ivory in recent years), narwhal, walrus, and whale ivory. It is unlawful to import, sell, purchase, offer for sale, barter, or possess with intent to sell any item containing ivory. 

There are no exceptions for antiques or pre-Convention ivory. It is legal to convey ivory to the legal beneficiary of an estate after death or in anticipation of death. The penalties are stiff, and ivory products will be seized and transferred to the New Jersey Department of Environmental Protection for “proper disposition.” The New York State legislature quickly followed with a ban on the sale of elephant and mammoth ivory and rhinoceros horn that Governor Cuomo supports. The New York Department of Environmental Conservation may issue permits for the sale of documented antiques over 100 years old and containing less than 20 percent ivory and musical instruments made prior to 1976 (this is bad luck for the New York owners of Bösendorfers and Hamburg Steinways made in the 1980s with ivory key tops). Fines are steep and felony charges possible. (See www.governor.ny.gov/sites/thediapason.com/files/GPB44-IVORY_BILL.pdf.)

In all these cases, vagueness of wording is a serious problem. Technically, federal laws take precedence, but until court battles ensue, those with non-antique but pre-Convention ivory or insufficient “proof of provenance” will not be able to sell their items intact.

Current and potential effects

Many antique and pre-Convention cultural artifacts contain ivory, including Torah pointers, George Washington’s false teeth, medical demonstration figures, scrimshaw art, and of course, musical instruments. Key tops, guitar nuts, saddles and tuning pins, wind instrument rings, stringed instrument bows, organ stop knobs, and more have been made from ivory for its workability, beauty, availability, density, durability, and tactile and acoustic properties. Many musical instruments remain in active use for generations and commonly travel with their owners.

Already, the international import ban has prevented collectors from importing important pieces for study, performance, and recording in the United States. Because of the abrupt announcement and enforcement, quite a few people buying or selling internationally have found themselves unable to get instruments to their new homes. Reduced to the domestic market alone, musical instrument values will necessarily drop. If domestic trade is further restricted this summer, the value of ivory-containing objects will be reduced to virtually nothing, nor will anyone be able to receive a tax deduction for donations of instruments to institutions since that is considered “financial gain,” a serious potential loss of donations to colleges, universities, museums, and other public institutions.

The restriction of musical instrument certificates to instruments that have not transferred ownership for any financial gain after February 25, 2014, prevents internationally traveling musicians from upgrading, or ever again purchasing any instruments or bows containing ivory that can travel with them. Given the expense and paperwork to obtain the musical instrument passports, along with the aggressive and suspicious stance of the customs officials, it is highly likely there will be less touring of musicians in and out of the United States. Again, musical instruments containing ivory will be significantly devalued. (See www.wqxr.org/#!/story/newark-officials-seize-budapest-orchestras-violin… and www.nytimes.com/aponline/2014/08/05/us/ap-us-travel-brief-bagpipes-at-t….)

Additionally, it will take a great deal of time, paperwork, and human power to administer and enforce all these new regulations. This will cost taxpayers dearly and consume considerable personal time for applicants, while not preventing the loss of one elephant to poaching.

Look-alike problem

It is very important to point out that customs agents are rarely skilled at identifying materials and may even presume, for example, that all instruments of a type are suspect. This has resulted in items containing “look-alike” materials and even with no ivory-like material being confiscated from their cases at border crossings with no explanations. It is highly advisable to have prepared and accompany your instrument with copies of an official appraisal or listing by the maker of the materials used in your musical instrument, whether it contains any suspect species or not. Also insist, as is your right, to be present when your instrument is inspected before shipping. Take photos of what is in the crate or case before shipping.

Late-summer developments

On July 14, 2014, two bills (H.R. 5052 in the House of Representatives, and S. 2587 in the Senate) were introduced; both would prohibit U.S. Fish & Wildlife from implementing any “new rule, order, or standard regarding the sale and trade in ivory that was not in place before February 25, 2014.” As of August 2, H.R. 5052 had 20 bi-partisan co-sponsors, an encouraging development. In addition, in early July, the House Appropriations Bill for the Department of the Interior included language that would prohibit U.S. Fish & Wildlife from spending any funds to enforce any rules, orders, or standard not in place before February 25, 2014. The appropriations bill has passed the Senate but faces a battle in the House of Representatives. The appropriations bill language is intended to put a moratorium on enforcement until a permanent method of undoing the disastrous actions of February 11 and 25, 2014, can be put in place. The appropriations bill includes other language against other more publicly controversial programs, but I am hopeful the ivory section will be kept as a trade-off against other concessions. The final hurdle is, of course, whether President Obama will sign or veto any of these bills.

What you can do to help

It is urgent that we eventually press for a permanent solution to protect cultural artifacts made before any species included in them was declared endangered. The current problems are regulations and enforcement rules, not laws, and can be changed with enough pressure. Lobbyists are working for groups such as the League of American Orchestras, National Association of Music Merchants, and some private individuals (e.g., through the important Podesta Group), and are kindly sharing information and guidance. Thanks to the efforts of many, we have the promising bills to be debated in Congress. Numbers count! It is critical for as many people as possible to write to their members of Congress, the President, the Secretary of the Interior, the Director of Fish & Wildlife Services, those on the Committee for Wildlife Trafficking (www.fws.gov/international/advisory-council-wildlife-trafficking/bios.ht…), Natural Resources, and the Congressional Committee on Fisheries, Wildlife, Oceans and Insular Affairs. See https://www.govtrack.us/congress/committees/HSII/22.

Most useful is to try to get a personal or phone appointment with your senators and representatives and explain why these regulations are harmful and will not save any elephants. E-mails through their websites are also working for some. Ask them to support and co-sponsor H.R. 5052 and S. 2587. You can find your senators and representatives at www.opencongress.org/people/zipcodelookup.

The important talking points are:

• We want to end the poaching of African elephants and illicit trade in new illegal ivory, but banning the domestic sale and trade of legal ivory in the United States and preventing import of antique and pre-Convention items containing ivory will not stop poaching, nor save one living elephant. 

• The July 2014 CITES meeting emphasized that the cause of poaching is extreme poverty, lack of governance, and corruption in the affected areas. Efforts need to help the affected communities and fund intelligence operations that locate poachers and dealers.

• The ban unnecessarily hurts owners of antiques and pre-Convention items containing ivory legally imported into this country by stripping their value, resulting in a taking of billions of dollars from law-abiding Americans. The domestic ban would devastate the current market in worked ivory items, causing legitimate business owners and everyday citizens tremendous economic harm. Note how the ban will hurt you personally. The analysis of the economic effect of this ban by U.S. Fish & Wildlife is grossly understated.

• The proposed ban would make the survival of cultural and historic artifacts much more unlikely, and keep them out of collections where they would be preserved. It is highly likely that the ban and regulations are against the National Historic Preservation Act of 1966. (See www.nps.gov/history/local-law/nhpa1966.htm.)

• Even the author of the African Elephant Conservation Act of 1989 testified at a congressional hearing on June 24, 2014, that this ban will not help to stop poaching and was never the intent of the AECA. (See www.fws.gov/international/laws/aeca_fv.html.)

• The current requirements for the antique exemption for export are still virtually impossible to meet for many legally obtained items due to a lack of documentation never previously required to stay with the instruments.

• Ideally, ivory regulations should revert to where they were on February 1, 2014, which did indeed stabilize elephant populations since their inception.

This is one of those times when we all need to stand up for what is right and fair. Somehow we need to get the powers in charge to understand that not one elephant will be saved by these absurd regulations, but our cultural, historical, and musical heritage will suffer, as will private individuals and owners of small businesses.

Here is contact information for the appropriate government officials:

Sally Jewel, Secretary of the Interior

Department of the Interior

1849 C Street, N.W. 

Washington, DC 20240

E-mail: [email protected]

Web: Feedback form

Daniel M. Ashe, Fish & Wildlife, Director of External Affairs

U.S. Fish and Wildlife Service

1849 C Street, NW

Washington, DC 20240

E-mail: www.fws.gov/duspit/contactus.htm

1‑800‑344‑WILD (9453)

Barack Obama, President of the United States

The White House

1600 Pennsylvania Avenue, NW

Washington, DC 20500

E-mail: www.whitehouse.gov/contact/submit-questions-and-comments

Representative Ed Royce

Chairman, Committee on Wildlife Trafficking

1380 S. Fullerton Road, Suite 205

Rowland Heights, CA 91748

To write your local senators and congressmen see: www.opencongress.org/people/zipcodelookup. 

For further reading: www.whitehouse.gov/the-press-office/2014/02/11/fact-sheet-national-stra…. ν

Notes

1. www.cites.org/sites/thediapason.com/files/eng/com/sc/65/E-SC65-42-01_2… “Interpretation and implementation of the Convention: Species trade and conservation: Elephants: Elephant Conservation, Illegal Killing and the Ivory Trade,” Convention on International Trade in Endangered Species of Wild Flora and Fauna, 65th Meeting of the Standing Committee, Geneva, Switzerland, July 7–11, 2014, especially pp. 10–11.

2. A. M. Lemieux and R. V. Clarke, “The International Ban on Ivory Sales and its Effects on Elephant Poaching in Africa,” The British Journal of Criminology (vol. 49, no. 4), 2009, pp. 451–471.

3. Testimony of Jack Fields, June 24, 2014, at Hearing of Subcommittee on Fisheries, Wildlife, Oceans, and Insular Affairs. http://docs.house.gov/
meetings/II/II22/20140624/102350/HHRG-113-II22-Wstate-FieldsJ-20140624.pdf.

Awareness in the wild

Cecil the Lion was a famous and favorite icon of Zimbabwe’s safari tourist industry. He was beloved by thousands who visited his home in Hwange National Park, and his photos were published around the world. He was thirteen years old and was central to a long-standing conservation study by biologists at Oxford University who had fitted him with a tracking device when he was six years old. He was huge and majestic, and he was easily recognizable because of big black streaks in his mane.

In the last days of July 2015, Cecil became an instant posthumous global celebrity when he was killed by Walter Palmer, a dentist and skilled trophy hunter from Minnesota. International news services and social media have been crackling with the story, Palmer is in hiding, the guide and landowner who had been paid to help with the hunt have appeared in court and been released on bail, and Cecil’s remains have been returned to the Zimbabwean government.

Palmer had paid for a license for such a hunt, but allegedly illegally lured Cecil outside the park, and as of this writing on August 1, the United States and Zimbabwean governments are discussing Palmer’s extradition. Thanks to social media, donations are pouring into wildlife conservation funds in six-figure clumps. Jane Goodall, who famously has spent more than fifty-five years studying chimpanzees at Gombe National Park in Tanzania, released a statement lamenting Cecil’s death that concludes, “Only one good thing comes out of this—thousands of people have read the story and have also been shocked. Their eyes opened to the dark side of human nature. Surely they will now be more prepared to fight for the protection of wild animals and the wild places where they live. Therein lies the hope.”

You can read the full statement on Dr. Goodall’s blog at www.janegoodall.org. And by now, her “thousands of people” must be many millions.

The timing of Cecil’s death was exquisite. Just a few days earlier, on July 25, while traveling in Kenya, President Obama released a statement that would effectively ban commercial trade in African elephant ivory in the United States. That announcement follows Obama’s executive order of July of 2013, in which he declared that the United States should “lead by example,” encouraging other nations to step up their active participation in the preservation of that majestic species. The United States Fish and Wildlife Service (USFWS) followed on February 25, 2014, by proposing a new rule affecting the trade and movement of ivory. You can see a simple summary of the specifics of the 2014 rule at www.fws.gov/international/travel-and-trade/ivory-ban-questions-and-answ…. For more background, I recommend you refer to the excellent article written by harpsichord specialist Anne Acker and published in the September 2014 issue of The Diapason. Ms. Acker did a great deal of excellent research and was generous with her time talking with me.

The specifics are presented in a chart. They include exemptions for any ivory more than one hundred years old (difficult to prove in many cases) and light exemptions for the domestic transportation of privately owned ivory. If you want to bring your grandmother’s harmonium home, there are no federal restrictions, unless your grandmother lived outside the United States.¹ No importing of ivory is permitted, period—except sports-hunted trophies. There is no restriction on importing sports-hunted trophies. Hang that on your wall.

Citing CITES

On July 1, 1975, the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES, pronounced sight–eze) was implemented, the culmination of nearly fifteen years of international negotiation. The text of the treaty had been finalized two years earlier by eighty nations. Today, more than 180 nations enforce the terms of CITES, which oversees the protection of more than 30,000 species of animals and plants. You can see a list of protected species at www.fws.gov/
endangered/species/us-species.html. They are categorized as “E” (endangered), “T” (threatened), “SAT” (threatened because they’re similar in appearance to an endangered species), etc.²

Loxodonta africana (the African elephant) is the source of the most highly prized ivory, and that species was added to Appendix I of CITES on January 18, 1990. USFWS regulations currently in effect allow trade in ivory that was legally removed from the wild before that date.

With Obama’s Kenyan announcement, the clock started ticking. The USFWS released the latest version of the new ban on trade and movement of ivory. The agency is receiving comments from the public until September 28, 2015, after which the regulation will be amended once more and put into force. The version now open to comment includes revisions of that published in Feburary 2014 (that you’ve already read). You can read the latest proposed revisions at www.fws.gov/international/pdf/african-elephant-4d-proposed-changes.pdf…;

Again, it’s a neat summary, comparing the present proposal with that of 2014, and it’s easy to read. While commercial imports are entirely prohibited, sports-hunted trophies would now be limited to two per hunter per year, a big improvement over no limit at all, but if you maxed out the limit year after year, you’d need a mighty big house in which to hang them.

The Times Square Crush

Anyone who has navigated the sidewalks and pedestrian walkways in New York’s Times Square knows about the crush of humanity that throbs twenty-four hours a day. On June 19, 2015, the USFWS staged a different Times Square Crush. A huge industrial rock-crushing machine, the hulking behemoth that crushes boulders into gravel at highway-construction sites, was driven into the center of the square, and a ton of ivory artifacts that had been seized in an undercover operation was sent up into the machine on a conveyor belt and crushed to powder. Secretary of the Interior Sally Jewell presided over the event.

Two years earlier, the USFWS staged an ivory crush in Denver, Colorado, at which six tons of artifacts were destroyed. A statement published on the website of the USFWS reads, “Since that crush, several governments throughout Europe, Africa, the Middle East, and Asia, have also destroyed ivory, joining with us to highlight this worldwide crisis and emphasizing that only a worldwide solution will stop wildlife poaching.” You can read the full statement and view videos of the Times Square Crush at www.fws.gov/le/elephant-ivory-crush.html.

These events were controversial—cheered by conservationists who believe that eliminating the commercial value of ivory is the strongest tool for the elimination of illegal poaching, and decried by others who claim that such destruction will not bring back dead elephants, and that diminishing the value of the ivory will diminish the care of the animals in the wild and drive the ivory market underground, likely leading to higher prices for illegal ivory. Still others feel that destruction of beautiful artifacts may make an emotional or political point, but would never have any impact on illegal poaching in Africa.

Who uses elephant ivory?

Readers of The Diapason will naturally think of musical instruments. Piano, organ, harpsichord, and harmonium keyboards were most typically made of ivory. Ivory veneers on natural keys are prized because as a natural grained material, ivory absorbs moisture, so the perspiration from the performers’ fingers doesn’t build up into slick pools on the keys. Ivory is also the most durable natural substance used on keyboards and arguably one of the most beautiful. And many organ consoles have engraved ivory knob faces, knob heads, and coupler tablets. 

Many guitars, violins, and other stringed instruments have small ivory parts such as the bridges and nuts that bear the strings, where it is prized for its acoustical properties. Ivory is also used for decorative elements on many musical instruments, and some wind instruments, both western and non-western, are made entirely of ivory.

Artisans who fashion high-quality pool cues are the largest consumers of new ivory (except in China, where carving remains prevalent), which is used in the tip (where the cue meets the ball) and the ferrules that join sections of the cue. Master players feel that those ivory parts give the ideal strike of cue to ball. No pianos and only a very few pipe organs are built with new ivory on the keyboards.

Builders of custom firearms use large pieces of ivory for rifle stocks, pistol grips, and many forms of ornamentation. And there is an active community of carvers and sculptors who specialize in working with ivory.

What does it have to do with me?

The proposed ban on trade and movement of ivory would have a big effect on the manufacture, restoration, sales and purchases of musical instruments. The American Institute of Organbuilders (AIO) has engaged a lobbyist, and the Associated Pipe Organ Builders of America (APOBA) is participating in a larger lobbying effort spearheaded by the National Association of Music Merchants (NAMM).

There is a revision aimed at musical instruments. In the “Proposed Changes” PDF that you’ve just read, the section of the chart devoted to “Sales across state lines” includes an exemption for certain manufactured items that include a small (de minimis) amount of ivory. Here’s the section from that PDF that defines de minimis:³ 

“What is the de minimis exemption? 

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: 

A. 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. 

B. If the item is located outside of the United States, the ivory must have been removed from the wild prior to February 26, 1976. 

C. The ivory is a fixed component or components of a larger manufactured item and not the primary source of the value of the item. 

D. The ivory is not raw. 

E. The manufactured item is not made wholly or primarily of ivory. 

F. The total weight of the ivory component or components is less than 200 grams.

G. The item must have been manufactured before the effective date of the final rule.”

Item “F” in that list is directed at musical instruments. The USFWS acknowledges that 200 grams is the typical weight of the ivory veneers on a piano keyboard, and as that would allow the usual amounts of ivory found in stringed and wind instruments, it seems a fair number.

But let’s talk about the organ. A standard 88-note piano keyboard has 52 natural keys—the average weight of ivory for each natural key is about 3.8 grams. A standard 61-note organ keyboard has 36 naturals, which at 3.8 grams each would total about 137 grams for each keyboard. And here’s where the math fails for the pipe organ:

• Most organs have at least two keyboards—ivories on a two-manual organ would weigh a total of 272 grams, well over the limit.

• Many finer organ keyboards have special thick-cut ivory, at least twice as thick as that found on a piano.

• Many organ consoles have ivory knobs and tablets. The elegant 1¼″ ivory faces found on older E.M. Skinner organs weigh about 10 grams each.

• Using those facts, a four-manual console with a hundred knobs would contain nearly 1400 grams of ivory, which is almost 3¼ pounds!

That may seem like a lot of ivory. But let’s go back to the sports-hunting exception. According to the website www.fieldtripearth.org, the average weight of an African elephant’s tusk is around 135 pounds. A trophy hunter could legally bring home four tusks a year—that’s 540 pounds hanging over someone’s fireplace.

Under the proposed restrictions, it would be illegal to buy, sell, or transport organ consoles, it would be illegal to file or sand existing ivory during restoration of a console, and it would be illegal to use replacement ivories salvaged from other keyboards to replace those chipped or cracked. “Working” ivory, altering existing and otherwise legal artifacts, would be completely prohibited. If your church hired an organbuilder from another state to restore the Skinner organ, they would be prohibited from transporting the console back to their workshop. They’d have to leave the keyboards and stop jambs behind.

What’s the solution?

Earlier, I mentioned that the clock is ticking while the USFWS receives comments from the public. The USFWS website has clear instructions about how to submit your opinion:

We have published a proposal to revise the African elephant rule under section 4(d) of the ESA [50 CFR 17.40 (e)]. This proposed rule is open for public comment until September 28, 2015. To view a PDF of the proposed rule, go to http://www.fws.gov/international/pdf/african-elephant-4d-proposed-rule-….

To read the proposal and provide comments upon publication, please go to the Federal eRulemaking Portal at http://www.regulations.gov. In the search box, enter FWS-HQ-IA-2013-0091 (the docket number for this proposed rule). You may submit a comment by clicking on “Comment Now!” The Service will review and consider all comments received by September 28, 2015 before publishing a final rule.

While preparing this essay, I’ve spoken with the presidents of the American Institute of Organbuilders and the Associated Pipe Organ Builders of America, the attorney engaged by the National Association of Music Merchants, a supplier of ivory, and an environmental journalist, and I’ve heard conflicting opinions. 

Some conservationists hold an extreme position that all trade in ivory should be banned without any exceptions. Others feel that some kind of middle ground is reasonable, and the USFWS seems to be receptive to such input. The 200-gram exception shows that. Still others feel that the proposed restrictions are counter-productive and could actually result in harming the stability of the elephant population while encouraging illegal trade. 

What’s the answer?

I will go to www.regulations.gov, enter FWS-HQ-IA-2013-0091 into the search field, and submit these suggestions:

• On January 18, 1990, the African elephant was added to Appendix I of CITES. The current regulation allows trade of de minimis amounts of ivory that was legally removed from the wild before that date.

The spirit of the 200-gram exception is to exempt ivory as found in musical instruments.

Pipe organs require more natural keys than pianos. Because the use of ivory as found in organ consoles is identical to that in pianos, any amount of ivory found in pipe organ consoles, legally removed from the wild before January 18, 1990, should be exempted.

• Much of the impetus behind the bans and the staged crush events is the possibility of new ivory being disguised as antique and slipped into the market. (Anyone who has spilled coffee or tea on a keyboard knows it can be done!) But I doubt such disguise is possible with older organ keyboards.

I wonder if the USFWS can suggest ways that legitimate craftsmen could help watch for disguised illegal material.

• There’s an exception in the proposed rules for museums, allowing the display of ivory artifacts in their galleries, or as part of traveling exhibitions.

Religious, educational, and other not-for-profit institutions could be granted similar exemptions for the preservation of their existing musical instruments.

• If the regulation allows even one self-indulgent trophy hunter to bring home a carcass or part of one, it shouldn’t restrict the sale of an historic organ console.

My several conversations have made it clear that whatever revisions are made, no new use of ivory and no importation will be permitted. That’s off the table. This will devastate some businesses, and severely limit others. It’s likely that no new “working” of ivory that’s less than a hundred years old will be permitted, including material dating from before 1990. While it’s possible that a subsequent presidential administration would weaken or reverse these rules, there’s less than a month left as you read this to comment before they take effect.

While I believe that ivory is the premium material for use on keyboards, I know very well that there are other suitable, even desirable materials. Cow bone has natural grain and therefore similar absorbing properties, though quality varies, and I know of bone keyboards that haven’t held up well. Many tropical hardwoods (some of them endangered species) work well, though they don’t wear as well as either ivory or bone. Fruitwoods are great, and you can throw the scraps in your barbeque grill to flavor the meat. And pretty much every modern concert piano has plastic keys. Scores of great musicians play on plastic before huge audiences every day. It would be hard to maintain that it’s impossible to build pipe organs without new working of ivory.

The 1990 rule works for me. If musical instruments built since then included ivory harvested earlier, they should be exempted. But from now on, no new cutting of any ivory.

Notes

1. I’m discussing only federal restrictions. It’s important to note that some states are enacting more restrictive rules, possible criminalizing possession of ivory, including mammoth ivory, which is not an endangered species. 

2. Go to www.fws.gov/endangered/species/us-species.html, and click on “mammals.” You’ll see that the African elephant is listed as threatened, not endangered. 

3. According to the dictionary imbedded in my laptop, de minimis is an adjective defined as “an amount too trivial or minor to merit consideration, especially in law.”

Enjoy a fun-filled afternoon of improvised organ music and illustration, with pre-concert activities beginning at 1:30 and post-concert organ tours.