Atlanta, GA -(AmmoLand.com)- 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, NRA, SCI and a number of ivory, musician’s and antiques 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.
1. The antique exception covers ivory that’s 100 years old or older and was never repaired or modified since 1973
2. The de minimis exception covers ivory that is less than 100 years old and is further narrowed by six other criteria, all of which must be met.
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.
Moreover, the requirement that any 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.
Finally, note that an item that is 99 years old today will be legal to trade under federal law in the U.S. next year when it is 100 years old, provided it otherwise meets the criteria.
De Minimis Exception
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 “preban” has any documentation, this is potentially a very problematic issue – even post-ban ivory may not have been transferred with adequate 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;
(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 ivory handle or ivory decoration and if it exceeds 50% more value that would fail this criteria.);
(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 could 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 (approx. 7 ounces); and
(vii) The item was manufactured or handcrafted before the effective date of this rule (July 6, 2016).
Again, in order to qualify under the de minimis exception, every one of the above six criteria must be met.
FWS refused to create any “safe harbors” or binding criteria that a seller could rely upon to be certain an item qualifies as an antique or under the de minimis exception. Instead, it is totally up to the discretion of 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.
FWS also maintained their position that the entire onus is on the ivory seller to prove themselves innocent. If they seize your ivory-handled knife, it is up to you to prove that it is legal. They have 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.
It is also extremely 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. It doesn’t mean what most people would assume. In today’s world, the vast majority of commercial transactions have an interstate connection based on these precedents. 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 sell, regardless of medium, could implicate interstate commerce.
Traveling to another state to sell is, without any doubt, interstate commerce. Even if you sell in the state in which you live, out-of-state customers or alleged “straw man” deals could 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 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, precedent suggests that the IRS will estimate its value for estate purposes as if it could actually be sold or based on its black market value. In such a case you would not be able to sell it to pay estate taxes on the items.
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: https://www.fws.gov/international/pdf/questions-and-answers-african-elephant-4d-final-rule.pdf.
You can click here to read the final rule as published in the Federal Register on June 6.
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 totally innocent victims of abusive enforcement of this ban will likely choose to just roll over because they either have no stomach to fight or don’t have the financial means to fight, or both. The Feds are counting on that.
State Ivory and Fossil Ivory Bans
Note that the federal rule is separate from state ivory bans which are listed below:
- New York: Ivory and Fossil Ivory
- New Jersey: Ivory and Fossil Ivory
- Washington: Ivory
- California: Ivory and Fossil Ivory – Effective July 1, 2016 (a lawsuit challenging ban has been filed)
- Hawaii: Ivory and Fossil Ivory – Effective June 30, 2017
State ivory bans have been stopped in 13 states this year.
As for enforcement, there’s no reason the 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.
Knife Rights has opposed this 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 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 connection between these bans on ivory that’s been legally here in the U.S. for decades and the poaching in Africa.
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, estimated at 95% or more, and insignificant compared to almost all other countries as well. The U.S. trade in illegal ivory was already essentially the lowest in the world before this ivory ban campaign began.
The FWS has continued to lie about the current situation in Africa which has actually seen a significant DECLINE in poaching of 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.
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.
It must also be noted that the upcoming election will almost certainly have an impact on ivory owners. This ban is the direct result of a Clinton Foundation Global Initiative designed to pander to their supporters and to raise funds for the Clinton Foundation. That’s where it started. A win by Clinton in November will be virtually guaranteed to embolden FWS enforcement to an even greater degree, as well as efforts to expand the ban further.
A Clinton presidency would make enactment of the African Elephant Conservation and Legal Ivory Possession Act highly unlikely.
About Knife Rights:
Knife Rights is America’s grassroots knife owners organization, forging a Sharper Future for all knife owners. Knife Rights is dedicated to providing knife owners an effective voice to influence public policy. In the past six years, Knife Rights has passed pro-knife legislation repealing knife bans in 15 states, stopped anti-knife legislation in 8 states. Knife Rights is also leading a federal civil rights lawsuit against New York City and the New York District Attorney over their persecution of knife owners.
For more information, visit www.KnifeRights.org.