Proposed Ivory Sale Regulations Could Pose Hardship for Museums, Churches, Schools

On July 29, the U.S. Fish and Wildlife Service published for public comment proposed regulations [80 Federal Register 45154] to implement a previously-announced plan to ban the interstate sale of almost all products containing elephant ivory.  Text of the proposed rule can be found on the FWS website, www.fws.gov and by clicking on Federal Register notices. 

Under the proposal, all domestic sale of ivory or ivory-containing products would be banned, with the exception of:

• any item over 100 years old and meeting the requirements for a bona fide “antique” under the federal Endangered Species Act; or
• items less than 100 years old which contain not more than 200 grams (approximately seven ounces) of ivory, if the items was manufactured prior to the effective date of any final rule issued by FWS and the item is not made wholly or primarily of ivory.

The 200-gram weight limit was designed to exempt most musical instruments.  By way of background, ivory was used in certain acoustic guitars, pianos, organs, violin bows, bassoons, bagpipes and some other instruments, but, in general, use stopped in the mid-1970’s.

However, some musical instruments may fall outside the sale ban exemptions (e.g., pipe organs), making it impossible for museums and some other tax-exempt organizations to acquire these instruments for their collections or use.  Perhaps in recognition of this, FWS noted in its regulatory proposal that it was specifically seeking comment on whether there should be a separate exemption for museums.  Institutions such as churches, schools and orchestras which operate as tax-exempt entities were not cited.

The National Association of Music Merchants suggests that museums and others carefully review their acquisition needs and consider filing formal comments with FWS by the September 28, 2015 deadline.  Comments could urge that any final rule contain an exemption for museums and other institutions which are tax-exempt under Section 501(c)(3) of the Internal Revenue Code.

Comments may be filed electronically at www.regulations.gov, and entering the following docket number in the search box: FWS-HQ-IA-2013-0091.