New Federal and State Ivory Regulations and Pianos

Guest Blog by Sally Phillips

The American piano industry voluntarily abandoned ivory as a key-covering material and switched to plastic in the mid-1950s. By the 1980s, European makers had taken the same path. Since then, the piano-manufacturing industry has not been involved in the illegal use or importation of ivory; today, no new pianos contain ivory.

Nonetheless, the U.S. Fish and Wildlife Service has proposed new regulations regarding ivory that will affect the sale and transportation of pianos with ivory keytops. The new Federal regulations will effectively eliminate the import and export of pianos with ivory keys, and would prohibit most sales of ivory-keyed pianos across state lines. Individual states, such as New York and New Jersey, have passed or are expected to pass bills of their own to eliminate sales within their borders. This means that individuals and dealers will not be permitted to buy, sell, or take in trade ivory-keyed pianos, unless the ivory is removed from the piano before the instrument is moved. Under the proposed Federal rules, there will be an “antique” exemption for pianos more than 100 years old — but a piano’s age can sometimes be difficult to document, and any repairs made to the ivory within the last 100 years will disqualify that instrument from receiving the exemption.

According to Fish and Wildlife, old ivory is included in this ban because it is difficult for government inspectors to tell whether ivory is new or old, legal or illegal, and because the market for legal ivory is being used as a cover for illegally obtained ivory. This leads to the killing of elephants for their tusks in countries where it is not permitted, in violation of international treaties. (The fact that the piano industry has not been implicated in the use of illegally obtained ivory doesn’t seem to matter.) Although pianos over 100 years old that have appropriate documentation can qualify for an “antique” exemption, pianos in the U.S. were made with ivory until the 1950s. Thousands of pianos made between 1914 and the 1950s would not be able to qualify as antiques.

These regulations would place a burden on the piano industry. Piano technicians frequently encounter pianos with ivory keytops, and are often asked to repair chipped ivory or replace missing ivory. Many dealers have ivory-keyed pianos in their inventory, and take old ones in trade. Rebuilders and the public buy them for restoration. Many of these people and businesses operate in markets that cover multiple states (for instance, the New York metropolitan area includes parts of New Jersey, Connecticut, and Pennsylvania) — the proposed Federal and state regulations will immediately become a problem for them. The links included at the end of this article explore the difficulty in navigating the proposed new regulations, and the many questions about documentation and enforcement.

One problem is that the states’ new and proposed laws differ from one another and from the proposed Federal regulations. The New York law just passed contains an “antique” exemption, and authorizes the Department of Environmental Conservation to issue permits for the sale of ivory-keyed pianos manufactured before 1975; the New Jersey law under consideration contains no antique exemption, and does not authorize permits for the sale of ivory-keyed pianos. Both state laws also regulate mammoth ivory, whereas the Federal regulations do not. Although mammoths are extinct and so are not covered by the Endangered Species Act, mammoth ivory looks so much like elephant ivory that its sale is sometimes prohibited, to prevent sellers from claiming that their elephant ivory is from mammoth tusks.

Dealers I have spoken with say they are perfectly willing to remove ivory keytops from their existing inventory and replace them with plastic, although there are many pianos for which that won’t be worth the expense (for example, most old uprights), and which therefore may be discarded rather than sold. Going forward, trade-ins and purchases will be awkward, especially when the sale is between private parties. Anyone taking an ivory piano in trade or purchase would have to send a skilled technician with the appropriate tools to the previous owner’s home to disassemble the piano and remove the ivory onsite before the piano is loaded onto the moving truck.

The proposed regulations and state laws prohibit only the purchase and sale of ivory; there is still nothing illegal about owning an ivory-keyed piano. However, the New York and proposed New Jersey laws would, technically, make it illegal for a piano technician in those states to replace a missing or broken ivory keytop, because that would constitute a sale of ivory. Owners can ship a piano across state lines with intact ivory for rebuilding, and the rebuilder can ship it back, but cannot replace any of the chipped ivory. Local, in-state technicians can replace broken ivory if that is legal in their state, but the out-of-state rebuilder cannot.

Piano technicians will be able to change the ivory key coverings to plastic, but for this service technicians usually send keys to key-recovering specialists, often out of state. The recommendations from the President’s Advisory Committee on Wildlife Trafficking suggest that the government put pressure on private-sector commercial shippers (such as FedEx, UPS, and the U.S. Postal Service) to refuse to ship ivory. This could include the shipment of ivory-covered keys to out-of-state key-recovering facilities, which prefer to remove the ivory themselves to preserve the integrity of the keys. If the keys are damaged beyond repair by incompetent removal of ivory in the piano owner’s home, replacement of the entire keyset could run into thousands of dollars. Keysets are not readily available for pianos that are genuine antiques, and custom manufacturing is very expensive.

With thousands of pianos crossing state lines in moving trucks each year, how is the government to know which ones constitute personal moves and which represent sales? An official of the U.S. Fish and Wildlife Service suggested to me that owners moving pianos across state lines for household moves or for rebuilding include a sworn affidavit with the piano providing the date of manufacture, original bill of sale, and any other proof of ownership, so that the piano’s owner can prove that the move is not a sale. However, it is not at all clear what kind of documentation Federal and state governments will accept as proof of a piano’s age if the manufacturer is no longer in business and no record exists of the original sale, even if a serial number is visible.

One piano-moving company has already told me that, to avoid the hassle of paperwork and inspections and the associated liability, it will no longer ship ivory-keyed pianos, even for private customers moving their household goods. If most movers come to the same conclusion, just moving a piano between states with a commercial shipper could become a problem, even if it is legal to do so.

The proposed Federal rules are currently in the form of a Director’s Order. When they are announced in the Federal Register, a public-comment period of uncertain duration will begin, during which the public will be encouraged to comment on the effects of the rules on the stakeholders involved; those comments may affect the final wording of the rules. In a follow-up article, we will let you know when the proposed rules are posted and the public-comment period is to begin; this is expected to be later this summer.

See the followup comments to this article.

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Below are links to additional resources on the subject of the proposed ivory ban:

U. S. Fish and Wildlife Service Director’s Order 210—February 25, 2014:
http://www.fws.gov/policy/do210.html

Appendix 1 to Director’s Order 210—Guidance to qualify for an “antique” exemption:
http://www.fws.gov/policy/do210A1.pdf

Amendment to Director’s Order 210—May 15, 2014:
http://www.fws.gov/policy/a1do210.pdf

Convention on International Trade in Endangered Species (CITES) — You can see from this document that the U.S. is attempting to help resolve the issue of the import and export of musical instruments for musicians who travel frequently between countries.
https://www.fws.gov/international/cites/cop16/cop16-resolution-cross-border-movement-of-musical-instruments.pdf

However, there is still much confusion about what documents are actually needed for the movement of ivory in and out of the U.S., even for import/export that does not involve a sale.
http://artsbeat.blogs.nytimes.com/2014/06/03/budapest-orchestra-has-bows-seized-over-ivory-concerns/

League of American Orchestras ivory-ban information:
http://americanorchestras.org/advocacy-government/travel-with-instruments/endangered-species-material/ivory-ban-impact-on-orchestras.html

U.S. Fish and Wildlife Service Q&A about the proposed regulations. On the chart, you can see that they expect regulations banning interstate sales to be adopted later this summer.
http://www.fws.gov/international/travel-and-trade/ivory-ban-questions-and-answers.html

Recommendations from the President’s Advisory Council on Wildlife Trafficking meeting of June 9, 2014:
http://www.fws.gov/international/advisory-council-wildlife-trafficking/pdf/advisory-council-recommendations-06-09-14.pdf

Proposed State of New Jersey bill:
http://www.njleg.state.nj.us/2014/Bills/A3500/3128_I1.HTM

New York State legislation just passed:
http://www.humanesociety.org/news/press_releases/2014/06/ny_leg_passes_ivory_rhino_horn_ban_062014.html

During my research for this article, I became aware that piano manufacturers are being erroneously blamed for the current demand for ivory, even by musicians who ought to know otherwise. See this recent statement by Billy Joel, who apparently does not understand that currently manufactured instruments do not contain ivory. http://www.billyjoel.com/news/whom-it-may-concern-bill-fight-illegal-ivory

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Over the past 35 years, piano technician Sally Phillips has worked in virtually every aspect of the piano industry—service, retail, wholesale, and manufacturing. In her role as a concert-piano technician, she has tuned and prepared pianos for concert and recording work in such venues as Town Hall, Alice Tully Hall, and the Kennedy Center, and for such orchestras as the Cincinnati Symphony, the BBC Concert Orchestra, and the Vienna Philharmonic. At present, Phillips lives in Kentucky and works throughout the southeastern U.S. She can be contacted at sphillipspiano@hotmail.com.

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4 thoughts on “New Federal and State Ivory Regulations and Pianos

  1. Please do let me know when the comment period begins. Not only would these rules you describe cause great harm to our business but it would cause even greater harm to the remaining supply of old pianos. At least I suppose it would raise the value of intact antiques as the even greater flood of pianos heads to the dumps. Did I hear somewhere that museums will have special rules? Thanks for taking the time to research this subject. It’s definitely appreciated.
    Charlie the Tuner

  2. This ivory ban will divert scarce resources from fighting poaching and interdicting smugglers to punishing innocent Americans who own and trade legal ivory that’s been in this country for decades, sometimes centuries. The government and NGOs pushing this ban are exaggerating the problem. CITES, the international body who tracks endangered wildlife issues, reported that poaching in Africa has been declining since 2011 because of successful efforts in Africa to ramp up law enforcement. Ivory ban proponents claim 35,000 elephants die a year because of poaching, but CITES puts the number at 25,000 for 2011, 22,000 for 2012, and 20,000 in 2013. The problem is still urgent, but it is well documented that the poached ivory flows to China, not the US. It’s crazy to prosecute people for selling vintage pianos and other legal ivory items in the US under these circumstances.
    http://www.cites.org/eng/elephant_poaching_and_ivory_smuggling_figures_for_2013_released

  3. “In the United States, the Congress is prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the United States Constitution. The states are prohibited from passing ex post facto laws by clause 1 of Article I, Section 10. ” Exceptions to ex post facto have been made wherein existing criminal laws have been either moderated or enlarged. Ivory that has been legally bought, sold and traded does not appear to fall under this exception. Even if the government recognizes ex post facto with respect to ivory, requiring documentation from innocent citizens who simply wish to move a vintage piano with ivory keys from one state to another is an unreasonable burden that, in effect, circumvents the protections afforded by ex post facto.

  4. Logical, rational decision making and immutable facts do not play much of a role in writing nor enforcing these laws that have far more harmful unintended consequences than beneficial ones. Rather, they are yet another platform for enlarging the reach and grasp of government, which is a goal unto itself, to provide more “government jobs,” any government jobs, which are then seen as a benevolent act of that government.
    Let’s take take a look at the raid on the Gibson guitar factory, a heritage company, a few years ago by “fish cops” in SWAT gear with machine guns! Can we really believe that the woman who masterminded that operation was well informed? She reported that the raid was because of illegally harvested “RARE” Macassar ebony, apparently unaware that Macassar ebony is the “least” desirable of the ebonies in the music industry because it is coarse grained and uneven in color and density. In short, it is plentiful because it is crap!
    The real issue is one of getting and hanging onto high paying federal jobs that come with authority that cannot be challenged. This is the same motivation for the CITES treaty. Minor countries, which are more and more in the grip of victimology epidemic, would love to dictate laws to the USA, which which will in turn obligingly fall on its own sword in the enforcement of these laws. This enforcement within the US costs the foreign promoters not one thin dime! The more local reality is that these well paid enforcement agenciesm agents and directors care not a whit that basis of these laws they enforce are specious, and most, if not all, would be equally content to “Nuke the Gay Whales,” if it meant a promotion, a raise and a good pension.
    A little learning is a dangerous thing indeed. It’s our own government that is the “JV” team, and it’s the backbone of the US economy, the small businesses like the ones mentioned in the article, who pay the price while government or officials are not held accountable for incompetence nor malfeasance. These “tangle of razor wire” laws and treaties seem to be enacted and ratified in a misguided act of political correctness to appease foreign activist NGOs and governments, but to no beneficial purpose for the USA. It’s as if it is a grave sin to look out for our own interests when negotiating treaties. One costly attribute of these ill conceived treaties and laws is that even if and when their catastrophic nature dawns on us, rescinding them is regarded as being more of a burden than to leave in place – the survival instinct of the agency. I’d like to believe that it’s just me being cynical, but the quality of men and women who nowadays fill the halls of government and diplomacy are largely incompetent because they fail to grasp, or care not to, that they are not doing the job, but simply holding the position: As they say in the vernacular, “too stupid to know they’re stupid.” (That stupidity can be equally of morality or of intellect.)

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