On June 6, 2016 the U.S. Fish and Wildlife Service finalized a new rule governing the import, export, and sale of African Elephant ivory across state lines. This new rule strengthens and clarifies issues with the sale, ownership, and travel of ivory. Included in the rule are areas of interest to all musicians, which particularly affect bagpipe owners.
The rule effectively bans the import and export of ivory into the U.S. There are a few exemptions. The two most relevant exemptions for owners of bagpipes are the ESA antiques exemption and the de minimis exemption. Both of these exemptions lay out specific criteria that must be met for an item to qualify. The rules affect musicians of all instruments traveling in and out of the US. If you are the owner of a set of Highland bagpipes with real elephant ivory mounts and plan to travel, it will be up to you to prove your instrument meets these criteria.
The ESA antiques exemption has 4 criteria;
(i) The item must be 100 years or older,
(ii) It must be composed in whole or in part of an ESA-listed species,
(iii) It cannot have been repaired or modified with any ESA-listed species after December 27, 1973,
(iv) It must have been, or will be, imported through and endangered species “antique port.”
Under certain circumstances if the item was imported before September 22, 1982 or created in the United States criteria (iv) does not apply.
The de minims exemption has 7 criteria. To qualify for the exception, manufactured or handcrafted items must meet all of the following criteria:
(i) If the item is located within the United States, the ivory was imported into the United States prior to January 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;
(ii) If the item is located outside the United States, the ivory was removed from the wild prior to February 26, 1976;
(iii) The ivory is a fixed or integral component or components of a larger manufactured or handcrafted item and is not in its current form the primary source of the value of the item, that is, the ivory does not account for more than 50 percent of the value of the item;
(iv) The ivory is not raw;
(v) 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;
(vi) The total weight of the ivory component or components is less than 200 grams; and
(vii) The item was manufactured or handcrafted before the effective date of this rule.
An important, but minor change is the language “fixed or integral.” The earlier rule stated that the ivory must be fixed to the item. This caused problems because on some instruments, the ivory was used in clips or screws that could come off. This could have included the bagpipe mounts. The addition of “integral” clears up this issue.
What Should You Do?
The questions most people will have are; Are my bagpipes antique? Do they qualify for the de minimis exception? What does 200 grams of ivory look like? Finally, how do you prove any of this?
The first step to answering all of these questions will be to get your bagpipes appraised. It will need to be done by an appraiser who meets certain requirements of the U.S. Fish and Wildlife Service. You can find the requirements here. The appraisal should show whether the bagpipes meets most of the conditions.
The next big question is: Do the bagpipes have more than 200 grams of ivory on them? This is a bit of a nebulous question. There is no easy way to really answer this question. Different vintage bagpipe makers used different size and thickness on their ivory mounts. All of the mounts could be taken off and weighed but that could violate provision (iii) of the antique exemption. The Fish and Wildlife Service provides a few examples which might help. The best answer would be, have the appraiser make an educated guess using actual pieces as a guide. As a personal guide, a loose, chunky ivory blowstick mount from a vintage set of Henderson drones weighs in at 47.3 grams. Give or take a few grams, the estimated weight of ivory on an antique set of drones might be somewhat higher than 200 grams.
For any travel outside of the U.S., and most other counties, the bagpipes would need a CITES passport to cross international borders. There is some cost involved in applying for one of these, and the paperwork would require an accompanying appraisal.
The main take away from all of this its that there is still a bit of ambiguity in these rules. The rule still allows a lot of discretion in the hands of border control agents, especially in the determination of the weight of the ivory on the bagpipes. In short, get your paperwork in order for your vintage ivory bagpipes before you plan to travel outside the US. Ignoring these rules can result in your vintage stand being confiscated and held indefinitely, or worse, destroyed. Trade of instruments with ivory inside the U.S. is less regulated. The bagpipes would still need to have ivory that was harvested and imported prior to February 26, 1976.
For some background, African elephant ivory is protected in the United States by the Endangered Species Act (ESA). The law was passed in 1973 to bring the U.S. into compliance with the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). This international agreement is designed to ensure that trade in wild animals and plants does not threaten the survival of the species in the wild. The African elephant was first added to CITES in 1976 and added to the ESA in 1978.
Further restrictions were place on Ivory in the African Elephant Conservation Act of 1989. This act banned most import and sales of ivory in the U.S. It also created a fund to help protect, conserve, and manage African elephants.
Federal code - 50 CFR 17
Endangered Species Act of 1973 - 16 U.S.C. § 1531 et seq.ESA Revision and Final Rule
U.S. Fish and Wildlife Final Rules Q&A
U.S. Fish and Wildlife Service Q&A
U.S. Fish and Wildlife Traveling with musical instruments
U.S. Fish and Wildlife FAQ - Appraisals
Examples of ivory pieces and weights