Updated July 3, 2016: On June 6 the U.S. Fish and Wildlife Service (FWS), acting in furtherance of an executive order by President Obama, published its final rule concerning the Special Rule on African Elephants, commonly referred to as the “Federal Ivory Ban.” The new rule goes into effect July 6. Knife Rights would like to thank our friend Rob Mitchell of the Elephant Protection Association for his insight in compiling the following summary.
The Final Rule is designed to implement their goal of a “Near-Total Elephant Ivory Ban” as stated in the FWS press release that accompanied publication of the rule.
It is worth noting that the final rule is a far cry from the original proposals back in 2012 that had virtually no exceptions (see below). The delay in bringing forth the final rule and the changes for the better are the result of significant pushback by Knife Rights, Elephant Protection Association, National Rifle Association, Safari Club International and a number of musician’s and music organizations and ivory and antique collector and dealer organizations. Without that effort, you can be sure that the final rule would have come out much sooner and been much, much more restrictive than it ended up being, albeit that it is plenty restrictive as it is.
The new rule covers “interstate commerce” in only elephant ivory and not fossil ivory (see below an explanation of why interstate commerce covers much more than you might expect). It includes two exceptions to the near-total ban, both of which will have an adverse effect on trade in ivory handled and decorated knives.
Alfred Hunter 1830s Bowie
For the antique exception there is no weight limit or any requirement that ivory be incorporated with another object. Solid ivory items are allowed.
Documentation of one sort or another will be key to claiming the antique exception. FWS notes the value of experts and professional appraisers in establishing the age or provenance of an item, BUT, expert opinions are simply potentially useful and not determinative. Any expert needs to be prepared to document the basis behind an opinion that an item is an antique.
No antique ivory items will be allowed to be imported, period. Antique ivory items can be legally exported as long as the country to which they are exported has no ban on importation.
The requirement that any ivory in an antique ivory-handled or decorated knife not have been repaired or modified after December 27, 1973, could be an issue with some knives that otherwise fall under the antique exception. It mostly serves as a caution that you ought not consider any repairs to eligible antiques or they will be prohibited future from sale or trade.
Finally, note that an item that is 99 years old today, and illegal to sell, will be legal to trade under federal law in the U.S. as soon as it turns 100 years old, provided it otherwise meets the antique criteria. So if you can wait, many ineligible knives will eventually become eligible, assuming no future change in the rule.
De Minimis Exception
Kyle Gahagan 2015
The de minimis exception criteria are entirely arbitrary and have no basis in anything rational other than being a means to provide an allowance for this Administration’s favored groups, primarily musicians and symphonies, as well as an attempt to fend off politically powerful groups such as NRA, while still pandering to the radical animal rights organizations.
For the de minimis exception for ivory less than 100 years old, the additional narrowing criteria are listed below with some annotations to make them a bit clearer. In order to qualify under the de minimis exception, every one of the following six criteria must be met:
(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;
Since little, if any, of the ivory imported “pre-ban” (pre-1990) has any documentation, because none was required, this is potentially a very problematic issue. Other means of documenting age will be critical. Post-ban, many purveyors of pre-ban raw ivory did keep records that provided provenance, but many knifemakers failed to pass this along to purchasers. Even post-ban ivory may not have been transferred to knifemakers or others with adequate CITES documentation.
(ii) If the item is located outside the United States, (it can be imported only if) the ivory was removed from the wild prior to February 26, 1976;
Again, documentation of age will be key in such cases. If the item is already in the U.S., than this is automatically met.
(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;
Knife handles or ivory nuts that could be removed from an item and meet all other criteria of the de minimis exception are covered by the exception. However, this exception would not allow knife handles, ivory nuts or other components made from ivory to be sold or traded independently. The 50% value rule will likely be appraised based on value of an identical or similar knife with other than an ivory handle or ivory decoration and if it exceeds 50% more in value in comparison that would likely fail this criteria. Any scrimshaw would be included in the value calculation.
(iv) The ivory is not raw;
Any existing raw ivory can no longer be traded or worked and then traded, period.
(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;
If an item is less than half ivory and qualifies under all of the other de minimis criteria, it would be legal to sell in interstate trade. However, just putting a knife on a big wooden base or surrounding it with a display case is unlikely to bring the knife within this exception.
(vi) The total weight of the ivory component or components is less than 200 grams (7.05 ounces); and
FWS says the 200 grams comes from their determination that this would encompass most ivory piano keyboards. The vast majority of ivory-handled knives will meet this criterion including virtually all folders, BUT some larger fixed blade knives may not. If in doubt, you will have to calculate the volume of ivory as best you can and then calculate the weight. Ivory weighs approximately 30 grams per cubic inch, so 200 grams equals approximately 6.67 cubic inches of ivory (0.25 x 2 x 13.34 inches, 0.5 x 2 x 6.67 inches, 1 x 1 x 6.67 inches, for example). The result would be subject to a review in any FWS enforcement, so you’ll need to document how you accurately came to your conclusion.
(vii) The item was manufactured or handcrafted before the effective date of this rule (July 6, 2016).
Documentation proving that it was completed before July 6, 2016 will be key. Lack of documentation will make meeting this criteria difficult, especially with recently completed knives (see more below).
Again, in order to qualify under the de minimis exception, every one of the above six criteria must be met.
Clearly, some of these criteria are not necessarily readily ascertained or documented, particularly “vii.” However, in any enforcement action all available information may be used, including email, forum posts and the like. It is difficult not to leave a documentation trail of some sort as to when any recently completed knife was made. On the other side of the coin, a knife about which there is already an online post, email, bill of sale or money trail or which was delivered with some proof of that transfer from before July 6, 2016, would readily meet the “vii” criteria. Absent that, it becomes difficult to prove, and the onus is on you to prove legality (see below).
FWS refused to create any “safe harbors” or binding criteria that a seller could rely upon to be certain their documentation was adequate for an item to qualify as an antique or under the de minimis exception. Instead, it is totally up to the discretion of FWS enforcement personnel whether proof or documentation in any given case is sufficient to prove whether an item is an antique or meets the de minimis exception. FWS said that more guidance would be forthcoming, which typically means that after enough issues arise in seizures and prosecutions, they will use their dispositions to provide further clarification of what they can get away with. They may also issue additional guidelines via email answers to specific questions, but unless it is a published opinion by the Chief Counsel of the Interior Department, these are not legally binding.
FWS also maintained their position that the entire onus is on the ivory seller to prove they are innocent. If they seize your ivory-handled knife, it is up to you to prove that it is legal. FWS has no obligation to prove it is illegal. So, yes, this means you are guilty until you prove yourself innocent, the opposite of how justice is supposed to work in America.
In an exchange of emails that was shared recently, it appears that FWS intends to allow service providers, such as scrimshandlers, to continue their craft on ivory items. Their explanation is that this is a service, not a sale or trade in the item. Two issues arise. The first is that this information and explanation is not legally binding. Relying upon it provides a degree of defense, but just as IRS advice cannot actually be relied upon in an enforcement action, it has no actual legal standing. Second, it isn’t yet clear at time of writing if an item scrimed after July 6, 2016 is eligible or ineligible for sale or trade thereafter, assuming it meets the other five criteria. Then there’s also the issue that the cost of the scrimshaw may push it over the 50% value limit.
Pre-1870 American Pocket Knives
Despite FWS assurances that they really only intend to enforce the law as “interstate commerce” is traditionally understood, over state lines, it is also important to understand that the term “interstate commerce” is a legal term open to an exceptionally broad interpretation as a result of numerous precedent-setting court rulings. In today’s world, the vast majority of commercial transactions have an interstate connection based on these precedents, even if not sold over state lines. As examples, advertising of any sort, including a mere posting in an internet forum or on Facebook, even if not public, or any other promotion or offer to sell, regardless of medium, could implicate interstate commerce.
Unfortunately, it really doesn’t matter what assurances that FWS has made regarding their intent with regards to enforcement of “interstate commerce.” They are not legally binding. Even if those making such pronouncements mean what they say, a change in administration, or even in FWS leadership, could change that overnight to the more all-encompassing legal definition. Also, it doesn’t prevent some lower level FWS agent from seizing items and then seeing how things sort themselves out afterwards.
Traveling to another state to sell is, without any doubt, interstate commerce. FWS has indicated that those wanting to offer up ivory for sale only within a state’s borders should have a clear statement with the item that the seller will not sell or trade across state lines.
Even if you sell in the state in which you live, out-of-state customers or alleged “straw man” deals would likely violate the law. Moreover, many such sales involve telephone conversations or emails that could make them subject to being “interstate commerce.” There have already been prosecutions under existing law for such transactions — there is no reason to believe FWS will not become even more aggressive now that they are empowered with this rule.
This new rule does not prohibit donating or giving away your ivory knife or specimen, or receiving an ivory item as a donation or a gift, provided it was lawfully acquired and there is no exchange for other goods or services involved. You can also pass along your ivory to your heirs.
However, it’s a Catch 22 that even if your ivory does not meet the antique or de minimis exceptions, and therefore has no monetary value whatsoever in interstate commerce, precedent suggests that the IRS will estimate its value for estate purposes as if it could actually be sold or based on its in-state value, or black market value. In such a case you would not be able to sell it to pay estate taxes on the items except within the state (if legal and not subject to a wider interpretation of “interstate commerce”).
Some armchair lawyers have seized upon this “giving away” allowance as a means to work their way around the restrictions in the rule, claiming that they would separate the ivory from the rest of the item for sale and just give the ivory portion to the new owner of the item at no cost. Anyone who thinks they can get away with that sort of bogus scheme is likely to be in for a painful and costly surprise courtesy of the Feds.
FWS has provided a fairly straightforward discussion of the rule, along with a table describing enforcement and all of the criteria for exceptions, at: http://www.fws.gov/international/pdf/questions-and-answers-african-elephant-4d-final-rule.pdf.
As for how enforcement manifests itself, there’s no reason to believe that FWS won’t begin aggressive enforcement at the earliest opportunity in order to make examples of some unfortunate folks whose prosecutions will serve to get the message out that they mean business.
How all this eventually falls out will be largely a product of how far FWS decides to push the issues regarding the various criteria. The criteria are specific, but subject to interpretation and individual enforcement variation, particularly with regards to documentation.
With the might of the federal government bearing down on them, many innocent victims of abusive enforcement of this ban will likely choose to just roll over because they have neither the stomach to fight or the financial means to fight, or both. Most such cases, regardless of the merit of the case, are settled with forfeiture, payment of a fine and admission of some degree of guilt to avoid prosecution. This has happened before and the Feds are counting on that. If this sounds a lot like legalized extortion, then you have a good grasp of how it works.
In cases where a dealer, auction house or online service lists ivory items on consignment for an owner, both could be liable in an enforcement action. The dealer, auction house or online service is most exposed, but any aggressive enforcement would also likely go after the owner.
And, just so that you don’t misunderstand their mindset and attitude, you should know that on June 20th this year FWS very conveniently issued a proposed revision to their seizure and forfeiture rules. Having now made literally hundreds of millions of dollars of formerly legal items illegal to sell or trade, they now want to make it easier to take advantage of that change in status or to execute civil forfeiture regardless of guilt or innocence. They disingenuously claim the proposed new rule only “simplifies” the existing rule. What it would really do is make it even easier for FWS to seize and then administratively execute civil forfeiture while making it even more difficult for innocent parties to get their legally owned items back. See: https://federalregister.gov/a/2016-14364
State Ivory and Fossil Ivory Bans
Note that the federal rule is separate from state ivory bans which are listed below:
New York: Elephant and Walrus Ivory and Fossil Ivory (including “teeth and tusk”)
New Jersey: Elephant and Walrus Ivory and Fossil Ivory (including “teeth and tusk”)
Washington: Elephant and Walrus Ivory
California: Elephant and Walrus Ivory and Fossil Ivory (including “teeth and tusk”) (a lawsuit challenging this ban has been filed)
Oregon: Elephant and Walrus Ivory and Fossil Ivory (including “teeth and tusk”)
Hawaii: Elephant and Walrus Ivory and Fossil Ivory (including “teeth and tusk”)
Nevada: Elephant and Walrus Ivory and Fossil Ivory (including “teeth and tusk”) – Effective January 1, 2018
State ivory bans have been stopped in 14 states this year.
Rod Chappel Lady Diana
c.1970s – early 1980s
Knife Rights has opposed this federal rule and state bans on ivory and fossil ivory for the simple reason that they have a very significant adverse economic impact on millions of Americans, including our members, knife collectors, knifemakers and artisans, with absolutely no positive impact on the alleged reason for the bans, poaching of elephants in Africa. Never once have proponents of theses bans been able to provide any rational direct connection between these bans on ivory that’s been legally here in the U.S. for decades and the poaching in Africa occurring today.The FWS and proponents of the bans have lied since day one about the size of the illegal elephant ivory market in the U.S. which is utterly insignificant compared to China’s estimated 95% or greater share, and inconsequential compared to all other countries as well. The U.S. trade in illegal ivory was already essentially the lowest in the world, almost too minimal to be measured, before this ivory ban campaign began.
The FWS and proponents of the bans have continued to lie about the current situation in Africa which has actually seen a significant decline in poached elephants since 2011, prior to when this rule was first proposed in 2012. This decline has been the result of a combination of enhanced law enforcement in Africa and Asia along with a drop in demand for commodities like ivory in China. These efforts were already achieving the desired reduction in illegal elephant poaching. The ban does nothing to further efforts to reduce poaching in Africa.
Moreover, FWS has continued to engage in double-speak in the final rule. Although they proclaimed the rule creates a near-total ban on the trade of elephant ivory, they also claimed the economic impact on people and businesses would be minimal, which is, simply, an outright lie and they know it. This ban is going to cost Americans hundreds of millions of dollars. FWS also emphasized that their rule only applied to interstate commerce and does not limit people to trade ivory within a state, but the fact is, as noted above, most intrastate trade can be considered interstate trade. How they enforce it is entirely subject to their whim.
Knife Rights opposed this ivory ban and will continue to oppose ivory bans as very bad for Americans, and ivory-handled and decorated knife owners in particular, and counterproductive for elephants in Africa. These bans just play into the hands of the radical animal rights groups who are raking in hundreds of millions of dollars through emotion-driven and blatantly false advertising to support their radical anti-hunting, anti-sustainable use agendas, as well as their inflated salaries, offshore slush funds and offshore pension funds.
We support the numerous efforts in Congress to address the issue, including the African Elephant Conservation and Legal Ivory Possession Act which would end the FWS’s unilateral moratorium on the trade in lawfully owned ivory, including ivory-handled and decorated knives, while also strengthening measures to stop elephant poaching in Africa and punishing countries that smuggle illicit ivory, like China.In other words, actually addressing the issue of elephant poaching and doing something practical and effective to stop it, unlike this ban which does nothing but hurt honest Americans.
While legislation would potentially provide the quickest solution to this abusive new law, with the final rule published this issue is now ripe for litigation. There are numerous causes of action upon which to sue. Together with other groups, Knife Rights is looking into taking the Feds to court. The Feds and the radical animal rights groups have dared people to sue them, knowing that litigation will be a long and expensive process. That extreme cost is the biggest hurdle to initiating a lawsuit. Hundreds of thousands of dollars must be raised before filing any federal lawsuit.