Regulation of African elephant ivory by Dept. of Interior soon to become more strict

Employees at the United States Fish and Wildlife Service display ivory slated for destruction in this 2013 photo. The U.S. destroys ivory seized as a result of law enforcement investigations and at international ports of entry. (Gavin Shire / USFWS)

Employees at the United States Fish and Wildlife Service display ivory slated for destruction in this 2013 photo. The U.S. destroys ivory seized as a result of law enforcement investigations and at international ports of entry.
(Gavin Shire / USFWS)

Recent uproar over the hunting of large wild animals dominated world news headlines after a well-known African lion named Cecil was shot by an American dentist in July. Hunting these beasts is often done completely legally under the supervision of government authorities, but the public outcry over Cecil’s death illustrates the sentiment against such killings. While trophy hunting will be allowed to continue, new regulations aimed at reducing the number of poached African elephants may have a significant impact on the future of the industry.

Prior to the recent commotion against large game hunting, the Department of the Interior began to formulate rules to combat the growing poaching crisis of African elephants. This summer, the agency proposed a regulation prohibiting international and interstate ivory sales.

This means a person may legally hunt and kill an African elephant, but the ivory by-products and most currently owned ivory products could no longer be part of a commercial transaction across state lines or national borders. In addition to this change in the rules, the DOI proposes a limit of two imported trophies per year per individual. The proposed change affects rule 4(d) of the Endangered Species Act and in particular the definition of “commercial activity,” which is defined as “the transfer of the specimen from one person to another person in the pursuit of gain or profit.”

Comment Analysis

The DOI received over 1.3 million comments and published 6,325 of them. Many of the commenters focus on the rule not going far enough and ask the DOI to eliminate all exemptions and carve outs.

Comments on African elephant proposal mixed in sentiment

Sentiment analysis of 5,967 published comments shows that shows that submitters has mixed feelings over the Department of Interior's steps to create stricter regulations regarding African elephants and their ivory.

Date Column Name
Support 716
Oppose 1180
Neither 4071

Approximately 670 comments mention the word “instrument,” most of which were written by musicians who oppose the new regulations. These musicians are particularly concerned about their instruments that contain ivory. Many comments clustered in between negative and positive sentiment, but most firmly oppose a documentation requirement.

“I’m a professional musician and am troubled that the proposed regulations are unclear regarding what documentation I need to prove provenance of instruments containing ivory. Aside from information included in the antiques section of the proposed rule, please provide clarification on exactly what documentation the USFWS will accept as positive proof of provenance of ivory in instruments,” Byron Hitchcock writes.

This comment is an example of a “form letter.” The language was likely sent out to union members with directions to submit a comment on the regulation. Removing all form letters results in the distribution below.


Deeper analysis into these results finds that many musicians are concerned that the de minimis amount of 200 grams of ivory is not enough for some musicians to buy and sell instruments.

“With respect to the de minimis exemption for musical instruments which is proposed at 200 grams, I would like to suggest that the amount be allowed to vary for what is fitting and proper for the instrument type,” writes Robert MacDonald, a concerned bagpiper.

He and many other musicians point out that many highland bagpipes were created prior to the proposed cut-off but use more than the amount of ivory allowed. Most musicians write about poaching concerns, but seem to believe the regulation will eliminate the ability to buy and sell instruments that have already been created.

Commercial Activities Still Legal

The vast majority of regulations require specific exemptions for certain activities. The definition of commercial activity must be a transfer between two parties. To illustrate an exemption, the DOI provides the example of a person traveling across state lines to have an item repaired or cleaned. While there is a transfer of money, there is not a transfer of the actual specimen. So the owner of the specimen would not be in violation.

The donation of an ivory item will also be legal. A party may make a transfer of the specimen to another party as donation and receive a tax benefit for that donation. While this activity may fulfill the requirement of the regulation, the tax benefit will not be considered income and therefore the transfer is permissible. The rationale behind this exemption is to incentivize donations to museums and other like-minded organizations which provide a social benefit. Correspondingly, a display or showing of artifacts for profit will not be illegal provided that all entities involved in the transaction qualified as “museums or similar cultural or historical organizations.”

The regulation keeps in place an antique exemption for ivory products over 100 years old. Also, the regulation exempts products that utilize 200 grams of ivory or less as a fixed component of a larger manufactured item created prior to the effective date of the rule. If the item is located in the United States then the ivory must have been imported prior to January 18, 1990. Items outside the US must have been removed from the wild prior to February 26, 1976.

Reason for Rulemaking

The rationale is twofold. First, there is now a legitimate poaching crisis of African elephants. Second, the sale of ivory drives the demand for illegally killed African elephants.

DOI cites data that finds since 2006, there has been an unprecedented increase in the illegal killing of African elephants, with recent estimates exceeding 20,000 per year. The agency believes this number necessitates an expansion of the rules allowed under the agency’s Endangered Species Act authority.

The expansion also hinges on the current legal market for ivory goods. Throughout the country, legally created ivory products pass through the primary and secondary market between citizens. The vast majority of these buyers and sellers act in complete accordance with the law. However, there is substantial evidence that the products exchanged in many of the transactions are, unbeknownst to the participants, obtained by the illegal trapping and killing of African elephants.

Per the regulatory notice, “the study by Martin and Stiles (2008) estimated that as much as one-third of the ivory found in selected metropolitan areas had been imported into the United States illegally since the 1989 African Elephant Conservation Act (AfECA) moratorium. Stiles estimated, in his 2014 follow-up study, that as much as one half of the ivory for sale in two California cities during his survey had been imported illegally.”

The DOI believes that by eliminating the United States market for ivory products completely, the corresponding reduction in demand will lower poaching activity.

Submitted comments will be read by the DOI and responded to accordingly. It seems that what is needed is a better exchange of information that would educate musicians and others on proper documentation and restrictions for international and interstate travel. While the documentation process will add expense and aggravation for musicians, the DOI will likely move forward. Only time will tell if the highland bagpipe will become extinct on the market.