In 2013, poachers used cyanide to poison a water hole in Hwange National Park, Zimbabwe’s largest game reserve, indiscriminately killing an unprecedented number of elephants and other safari animals. The reason for this horrendous massacre is simple: African elephant tusks (ivory) are still worth money on the black market, even though commercial trade in ivory has been banned by treaty since 1989.
When news of the massacre became well publicized in October, the public outcry could not be ignored. On February 11, the White House issued its National Strategy for Combating Wildlife Trafficking, and on that same day, Secretary of the Interior Sally Jewell announced that the U.S. Fish and Wildlife Service (FWS) was imposing a ban on commercial trade in elephant ivory. FWS Director Dan Ashe implemented that ban on February 25 through his Director’s Order No. 210, which was subsequently revised on May 15.
The order sets out two sections that may be relevant to musicians with instruments that contain ivory. The section that explicitly deals with musical instruments includes the following language:
b. Service employees must strictly implement and enforce the June 9, 1989, aeca moratorium (54 Fed. Reg. 24758) on the importation of raw and worked African elephant ivory while, as a matter of law enforcement discretion, allowing importation of certain parts and products, as follows:
(4) Worked African elephant ivory imported as part of a musical instrument, provided that the worked elephant ivory:
• Was legally acquired prior to February 26, 1976;
• Has not subsequently been transferred from one person to another person for financial gain or profit since February 25, 2014;
• The person or group qualifies for a cites musical instrument certificate; and
• The musical instrument containing elephant ivory is accompanied by a valid cites musical instrument certificate or an equivalent cites document that meets all of the requirements of cites Resolution Conf. 16.8.
Seeing that special provisions have been made for musical instruments (which should be read to include associated implements, such as bows), you might not realize that, at least for now, this order is a game changer for musicians and instrument dealers. If you own any instrument or bow that contains African elephant ivory and expect to travel outside of the country with it, please take the time to study how this order might affect you, even if you’ve crossed the border with the same instrument before and had no trouble.
Although the order is issued by FWS, you will probably see it enforced by U.S. Customs officers when you re-enter the country. Because of previously lax enforcement, you may not be aware that other such restrictions had been in place long before this order went into effect. Part of this order is that enforcement is to be tightened. So remember: Past performance is no guarantee of future results.
When you re-enter the U.S., it will be your responsibility to convince the Customs officer that what you are bringing in is allowed (as opposed to the Customs officer having to prove that it is illegal). If the Customs officer declares your instrument to be illegal because it contains African elephant ivory, the instrument will be confiscated and will not be returned to you, even if at a later date you can show that it could have been permitted.
When you carefully read the requirements for the importation of musical instruments, you will find that it may be extremely difficult to document compliance. For example, any instrument containing African elephant ivory that is bought after March 25, 2014, will not be allowed to enter the U.S. Even if it was purchased before that date, will you be able to show that the ivory it contains was legally acquired prior to February 26, 1976? The instrument must carry a cites musical instrument certificate (sometimes called a musical instrument passport) that can be shown at the border. The certificate must be obtained in advance, at a cost of $75 per instrument. Further, a cites musical instrument certificate is valid for only three years and only for the specific instrument for which it was issued. To top it off, the process for obtaining the required certificate is not well defined at this time, so don’t count on leaving the country with your instrument without considerable lead time.
A section of the Director’s Order dealing with antiques may aid musicians with ivory-containing instruments that are over 100 years old (since such instruments might qualify as antiques). However, at this time it is not clear how FWS will apply its rules for noncommercial importation of antiques to musical instruments or what documentation would be required for that. Because the requirements for bringing antiques into the country are even more stringent than those for musical instruments, you probably wouldn’t pursue the antique option unless your acquired your instrument after March 25, 2014 (which itself would prevent importation as a musical instrument). If you are able to determine that an instrument qualifies for importation as an antique, be aware that an additional provision requires antiques to be brought into the country only through one of the 13 ESA (Endangered Species Act) ports (Boston, New York, Baltimore, Philadelphia, Miami, San Juan, New Orleans, Houston, Los Angeles, San Francisco, Anchorage, Honolulu, and Chicago).
Further guidance is expected from FWS, but if you are going to travel internationally any time soon with an instrument that contains ivory and require clarification of the rules, you would be well advised to check with FWS well in advance of your travel. Also, be aware that other countries have requirements related to ivory that differ significantly from those of the United States, and you will need to comply with any regulations of the countries you visit.