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 Feb. 25, 2014, Dan Ashe, Director of the U.S. Fish & Wildlife Services, 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 that had been filed months earlier. Remarks were made that restrictions on intrastate and interstate sales and movement would follow, which happened on May 15, 2014, along with other revisions I will discuss below. Note that the Executive Branch and the U.S. Fish & Wildlife Services have ignored federal requirements for publication of proposed regulations and public comment before enforcing them. 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 an important United States collector and performer. The new regulations are being enforced through immovable, irrational requirements. Sadly, they ignore personal property rights of legally acquired items containing ivory. The situation has far reaching effects among musicians, collectors, musical instrument dealers and repair people, and everyday citizens.
The reasoning for these regulations is that they are said to be necessary to fight elephant poaching in Africa by shutting down the market for ivory. 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, which is responsible for virtually all of the market for illegal new ivory, would be influenced by the restrictions in the United States where only very small amounts of illegal new ivory enter the country. The U.S. Fish & Wildlife Services has acted to, in their words, ‘close the loopholes’ of transportation and markets for illegal new ivory in the United States, thus theoretically reducing pressure on elephant populations. The illogic of thinking a legally acquired musical instrument, or for that matter a piece of ivory inlaid 17th or 18th century furniture or knife or cane containing antique or pre-Convention (1976) ivory would be a conduit for new ivory in or out of the United States seems apparent to us, but the new regulations are being rigidly defended by the U.S. Fish & Wildlife Services staff. Director Dan Ashe also states that they cannot tell new from old ivory, a statement that has every expert and repair person familiar with antique or even just old ivory shake their head in strong disagreement.
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. Looking at CITES most recent report, there are currently about 500,000 African elephants in Africa, roughly the same as in 1982. About 22,000 elephants have been killed in each of the last several years, an admittedly horrific sounding number. According to other official reports, the population does replenish itself at a rate of about 5% per year so it would appear that the population is actually quite stable, a point supported by the same CITES report cited above. On the other hand, if poaching rises, as it may since organized crime seems to have become involved due to the tremendous prices being paid for illegal new ivory, then elephant populations will be at some risk. In some countries they are already at risk, while in others they are actually over-populated causing serious problems for farmers and themselves as they are destroying crops and overgrazing their own protected preserves. In these countries, culling is necessary. These countries have actually requested selling their ivory stores in a controlled fashion to help local human and elephant populations. Still, poaching is a brutal, dangerous, and horrific activity. That is agreed.
The Prior and Current Rules (please note these are subject to change):
Previously, there were no domestic restrictions 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 become virtually impossible to navigate. As of May 25, 2014, the details of the regulations have actually eased somewhat thanks to various musical instrument related organizations with lobbyists working tirelessly in Washington, DC. While better, the limitations and requirements are still unreasonable and irrational.
The most up to date summary can be found here: http://www.fws.gov/international/travel-and-trade/ivory-ban-questions-a…
Remember while reading this web page listed and the explanations of it below, that qualifying for the CITES documents is now extremely difficult. Here is the summary, with remarks about qualifying for the exemptions below:
Commercial Imports: Forbidden. This means that if you buy an instrument out of the country, you will not be able to get it into the United States. Period. 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 a 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 Feb. 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 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. See below.
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. They did, fortunately, eliminate two of the most ridiculous aspects of the Feb. 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. Still, one has to provide a complete report as to any restoration or repair work done on the item, not just the ivory. 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 ESA-listed species. (see link below)
To qualify under the antique exemption, the exporter must also document the age of the item and the identification of the species used in the item. 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 (which is unusable as large quantities are required which 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 of the item. Note that there are visual ways to identify the different types of ivory, except that Asian and African elephant cannot be visually distinguished. (See http://www.fws.gov/lab/ivory_id.php and http://www.fws.gov/policy/do210A1.pdf
Again, the ivory must not have been ‘repaired or modified’. Agents reviewing applications are now insisting on full details of work done on restored instruments, not just whether the ivory was repaired. When repairing ivory, restorers do not need to and do not use new ivory. There are synthetics and ample supplies of surplus antique ivory, e.g., in the form of piano key tops removed from old upright pianos. Regardless, as the rules are written now, if the ivory was repaired, they can refuse the application even it means you just filled a crack with a tinted dental epoxy.
The burden of proof has been laid heavily on the exporter. In practice the Fish & Wildlife agents reviewing applications since February have been virtually impossible to satisfy. Some have insisted that appraisers have been trained in biology or wildlife forensics. They have been informed that 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 referrals to published information that piano key tops were made from African elephant ivory was insufficient. This was despite pointing out that I was initially told by a Fish & Wildlife Official years ago that African elephant ivory (Africanus Loxodonta) was the correct species to enter into the form for piano and other ivory key tops.
See: http://www.fws.gov/policy/do210A1.pdf
The Musical Instrument ‘Passport’
After being besieged by concerned touring orchestras and other musicians, the U.S. Fish & Wildlife Service and CITES created a new permit certificate for people traveling regularly with their instruments, commonly called the Musical Instrument Passport. The application should be available on the Fish & Wildlife website by mid-June. They will require a signed appraisal stating the age of the ivory containing item, which must pre-date 1976. 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 through one of the 13 designated ports for ivory: http://www.fws.gov/le/designated-ports.html
If your instrument contains a listed endangered plant species, you must further exit and enter through a designated port for listed plant species: http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/cites.pdf#page=196&zoom=auto,0,726
There is a fee of $75 due with the application, which can take 45-60 days or more to be approved, processed, and the certificate mailed to you. Note that the musical instrument certificate is good for three years, and 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: http://www.fws.gov/international/permits/by-activity/musical-instruments.html
Domestic: Intrastate and Interstate trade and movement
Beginning on June 26 (30 days after new regulations were published in the Federal Register), domestic sellers of African elephant ivory will be required to 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 that the ivory was legally imported 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.
It is possible that later in the summer, the domestic rules will be tightened further.
Current and Potential Effects:
Already, the international import ban has prevented collectors from importing important pieces to add to the types of instruments available for study, performance and recording. Because of the abrupt nature of the announcement and enforcement, quite a few people who were buying or selling internationally have found themselves caught, unable to get instruments to their new homes. Reduced to the domestic market alone, musical instruments values will necessarily drop. If they proceed to further limit domestic trade, the value of effected objects will be reduced to virtually nothing, nor will anybody be able to receive a tax deduction for donations of instruments to institutions since that is considered ‘financial gain’. There is also a serious potential loss of donations to colleges, universities, museums and other public institutions, especially should the more severe domestic limitations come into play.
The restriction of musical instrument certificates to instruments that have not transferred ownership for any financial gain after February 25, 2014 means that internationally traveling musicians will not be able to upgrade, or ever again purchase any instruments or bows containing ivory that can travel with them. Again, musical instruments containing ivory will be significantly devalued.
Lastly, it will obviously take a great deal of time, paperwork, and human power to administrate and enforce all these new regulations. This will cost taxpayers as well as considerable personal time for applicants, and yet, will not help to prevent the loss of even one elephant to poaching. Antique and pre-Convention instruments are not loopholes for illegal new ivory.
Touring musicians have already run into serious problems, e.g. http://www.wqxr.org/#!/story/newark-officials-seize-budapest-orchestras-violin-bows/. Given the amount of 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 U.S. musicians out of the United States, and of international groups into the United States.
Look Alike Problem:
It is also very important to point out that customs agents are not always skilled at identifying materials. This has resulted in items containing ‘look-alike’ materials being confiscated and held at border crossings. It is highly advisable to have prepared an official appraisal or listing by the maker of the materials used in your musical instrument. Always have that document travel with the instrument as well as retaining a copy that travels with you.
On the Horizon
There will likely be more changes announced this summer for good or for bad. President Obama is hosting the first United States – Africa Leaders Summit in Washington, DC on August 5-6, 2014. Washington insiders expect he wants to make an announcement about rigid ivory controls in the United States as part of fighting poaching elephants in Africa. This makes it urgent to speak out to prevent closing domestic markets for musical instruments (and other items) containing ivory, and try to reverse the elimination of the antique and pre-Convention exemptions.
What you can do to help:
These are regulations, not laws –yet. They can be changed with enough pressure. Already some easing happened, which Dan Ashe of U.S. Fish & Wildlife Services admitted was simple ‘common sense’. There is more common sense to instill. There are some paid lobbyists acting on behalf of groups such as the League of American Orchestras, NAMM and some private individuals (e.g. through the important Podesta Group.) To really make a point though, numbers count. It is important for as many people as possible to write to the President, the Secretary of the Interior, the Director of Fish & Wildlife Services, and those on the Committee for Wildlife Trafficking. http://www.fws.gov/international/advisory-council-wildlife-trafficking/…
Most useful is to try to get an appointment, in person or by phone, with your senators and representatives and explain why these regulations are harmful and will not save any elephants. Congress funds U.S. Fish &Wildlife and can put corrective and preventative measures into appropriations bills.
The important talking points are:
• We all want to end the poaching of African elephants and the illicit trade in 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.
• If implemented, the ban would unnecessarily hurt owners of antiques and any items containing ivory already legally imported into this country by stripping the value from those items, resulting in a taking of billions of dollars from law-abiding Americans. The domestic ban would instantly render the current legal market in worked ivory illegal, causing legitimate business owners tremendous economic harm and causing harm to everyday citizens now unable to sell their instruments.
• 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.
• The proposed ban would go against the U.S. Fish and Wildlife Service's longstanding position that almost all ivory in the U.S. has been legally imported, and that its sale in the U.S. has no impact on poaching in Africa. It is also clear in the Endangered Species Act that it never intended to limit trade in or movement of antique and pre-convention ivory.
• Note how the ban will hurt you personally.
• The current requirements for the antique exemption for export are still virtually impossible to meet for many legally obtained instruments due to a lack of documentation has never been 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 heritages will suffer, as will private individuals and small businesspeople.
Contact information for government officials:
Sally Jewel, Secretary of the Interior
Mailing Address:
Department of the Interior
1849 C Street, N.W. Washington DC 20240
Phone: (202) 208-3100
E-Mail: [email protected]
Web: Feedback form
Daniel M. Ashe, Fish & Wildlife, Director of External Affairs
Mailing Address:
U.S. Fish and Wildlife Service
1849 C Street NW
Washington, DC 20240
Email: http://www.fws.gov/duspit/contactus.htm
1‑800‑344‑WILD (9453)
Barack Obama, President of the United States
Email:
http://www.whitehouse.gov/contact/submit-questions-and-comments
Mailing Address:
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500
Comments: 202-456-1111
Switchboard: 202-456-1414
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: http://www.usa.gov/Contact/Elected.shtml
For further reading:
