Ivory Ban Applied to Knife Handles and Pistol Grips

[BladesNBarrels]

On some of the Knife Forums, the ivory ban that goes into effect on July 6, 2016 is the source of a lot of discussion and concern.
Here is an analysis from Knifetalk Forums posted by a member that is a lawyer:

"Possession.
-Personal possession and non-commercial use (including non-commercial movement within the USA) of legally acquired ivory is permitted.
-The new rule does not impact or change the existing personal possession and non-commercial movement rules which have been in effect since 2014.

Commerce.
-No commercial importation of African elephant ivory is permitted (whether or not it is an antique).
-Non-commercial importation of African elephant ivory is permitted only under very limited circumstances (e.g., part of household move or inheritance; musical performances; traveling exhibitions; etc.).
-No interstate or intrastate commerce of an item containing African elephant ivory is permitted unless:
(1) the item qualifies as an antique under the ESA (this will not help Randall owners as one of the criteria for ‘antique’ statuts under the ESA is that the item be at least 100 years old); or
(2a) the item contains a de minimis amount of ivory (this means 200 grams which is 7.05 oz.) or less; and
(2b) the item meets these specifications:
(i) it is handcrafted or manufactured; and
(ii) the ivory contained in the item was imported into the US before January 18, 1990; and
(iii) the ivory is a fixed or integral component of a larger item;
(iv) the ivory does not account for more than 50% of the value of the item; and
(v) the item was manufactured or handcrafted before July 6, 2016.

Notes/Comments:
-This USFWS regulation applies ONLY to ivory from African elephants, and does NOT refer or apply to ivory from Asian elephants, walrus, whales/sea mammals, mammoths/mastodons, or any other animals. There are different rules regarding ivory originating with Asian elephants and other animals.
-This discussion does not include the other non-commercial permitted uses (sport hunted trophies, law enforcement or scientific specimens, worked ivory legally acquired and removed from the wild before 2/26/76 and not sold since 2/25/14, etc.), which have different qualifying criteria.
-International import or export of raw elephant ivory is prohibited.
-Intrastate or interstate commercial trade in raw ivory is permitted if it was imported before January 18, 1990, or it was imported under a CITES pre-Convention certificate. The seller must demonstrate compliance.
-Knives, and guns with ivory grips, are “assumed” to qualify for the de minimis limit. This means that the government assumes the amount of ivory in a knife handle is below the 200 gram limit. Given this assumption, a knife owner should NOT be required to remove the knife handle to be weighed.
-To summarize:
-It is "legal" to own an ivory handled knife if the ivory was legally obtained. The problem is in confirming the "legality" of the ivory. I'm guessing few, if any, collectors can do so.
-It is "legal" to buy and sell an ivory handled knife if the ivory was legally obtained. Again, the problem is in demonstrating the legality of the ivory (proving the circumstances under which it was obtained). This burden is on the seller.
-Given how I've never seen an ivory import certificate, even with items sold by famed auction houses, good luck proving that the ivory is non-elephant or otherwise qualifies as legal. Short of a DNA test or expert certificate, how could you re-create lost (or never existing)paperwork? Small wonder that most ivory handled knifes (and other items) are offered for sale as mammoth or fossil or walrus ivory or some similar material. Even salvaging an old ivory-keyed piano for it ivory will be problematic without paperwork."

The net result of the comments seems to be enforcement could be arbitrary and may cause seizure that results in an owner being required to prove that the ivory is legal.

[BladesNBarrels]

The same attorney updated his summary in response to questions on the Knifetalk Forum:

"As further comment on the new rule, which takes effect July 6, 2016, I offer the following summary:

SOURCE OF IVORY
-The new rule applies only to ivory from African elephants.
-Rules regarding ivory from Asian elephants are set forth under the Endangered Species Act (very strict; antiques only).
-Rules regarding ivory from walrus, and other marine mammals, are set forth under the Marine Mammal Protection Act.
-See also CITES which has rules regarding use of/commerce in ivory.

OWNERSHIP/POSSESSION
-Non-commercial ownership, possession, use, transportation (within the USA) and display of African elephant ivory continues to be allowed so long as the ivory was "lawfully acquired". The new rule does not change the existing rules in this regard.

INTRASTATE COMMERCE
-The new rule does not impact intrastate sale/commerce of items containing ivory.
-CITES "use after import" provisions/restrictions do apply to intrastate sales.
-Some states have passed laws which restrict sales/commerce in ivory. Sellers should check their individual state laws.

INTERSTATE COMMERCE
-The new rule does impact interstate sale/commerce of items containing ivory.
-As of July 6, 2016, no interstate sale/commerce in items containing ivory is permitted unless the item qualifies under a specified exception.
-For purposes of an ivory handled knife, the relevant exceptions are: (i) the ESA "antique" exception (which has several criteria, including that the item be at least 100 years old); and (ii) the "de minimis" exception.

DEMINIMIS EXCEPTION
-The "de minimis" exception has several criteria, all of which must be met (see list of criteria in earlier posts).
-The first, and what will probably be the most difficult criteria to meet, is to demonstrate that the ivory was imported into the USA before January 18, 1990, or that it was imported under a pre-CITES certificate.
-The seller has burden to prove that that the ivory was legally acquired, and that it meets all other criteria including total weight; % of weight/volume; value; and date made. An ivory handled knife is presumed to meet the weight criteria. It will not be necessary to remove the handle to be weighed.
-To qualify under the "de minimis" exception, the item must have been made (handcrafted or manufactured) before July 6, 2016.
-This made before date certainly sounds like the death knell for interstate sale/commerce of ivory handled knives made after 7/6/16.
-The new rule is absolutely the death knell for interstate sale of non-antique items primarily made of ivory, such as an ivory chess set, a elephant tusks (or other raw ivory), or an ivory figurine. Musical instruments have different rules and are not discussed here.
-Makers can make elephant ivory handled knives after 7/6/16 (assuming that the ivory was legally acquired), but cannot sell them via interstate commerce.
-What if I make an ivory handled knife in TX on 7/7/16, go to the BLADE Show in GA, and sell it to a buyer there? The feds would consider such a transaction to be interstate commerce (and in violation of the rule).

CAN I LEGALLY SELL MY IVORY HANDLED KNIFE AFTER 7/6/16?
-The short answer is, it depends...
-Yes, you can sell it within your state, if CITES and your state's laws permit the sale.
-Yes, you can sell it via interstate commerce, if it qualifies as an antique or it qualifies under the "de minimis" exception, and you can prove that it so qualifies (you will need paperwork demonstrating antique or de minimis status; the latter will require documents confirming original ivory import date and date knife was made).
-No, you cannot sell it via interstate commerce if you cannot prove that it meets all the criteria as an antique or that it meets the "de minimis" exception.
-While the ivory sky may not be falling, it will be probably be more difficult to sell an ivory handled knife after 7/6/16, especially on public sale or auction websites. Don't be surprised if, as of 7/6/16, ebay (and/or others) either: (i) changes the rules for listing ivory items (mandating posting of photos of certificates, etc. which demonstrate antique qualification or de minimis exception compliance); or (ii) restricts or bans the sale of all ivory items outright.

Again, the foregoing is not intended to be legal advice, but an effort to clarify the terms and impact of the new rule."

FAQ is here: https://www.fws.gov/international/pd...final-rule.pdf

[BladesNBarrels]

An interesting picture from May, 2016.
Eleven giant pyres of tusks went up in smoke Saturday as Kenya torched its vast ivory stockpile in a grand gesture aimed at shocking the world into stopping the slaughter of elephants. Estimated Black market value at 100 million US Dollars.

[Great-Kazoo]

Don't be surprised if, as of 7/6/16, ebay (and/or others) either: (i) changes the rules for listing ivory items (mandating posting of photos of certificates, etc. which demonstrate antique qualification or de minimis exception compliance); or (ii) restricts or bans the sale of all ivory items outright.

That's going to present an issue for me. My dad came back with stuff from the Korean War, and other parts of the world. During his time (pre Korea) as a Merchant Marine. Not exactly a paper trail late 40's early 50's.

[BladesNBarrels]

Don't be surprised if, as of 7/6/16, ebay (and/or others) either: (i) changes the rules for listing ivory items (mandating posting of photos of certificates, etc. which demonstrate antique qualification or de minimis exception compliance); or (ii) restricts or bans the sale of all ivory items outright.

Actually, Ebay banned ivory years ago and monitors the auctions and removes any that list ivory as a component.
The proof of age and de minimus is up to the seller in other transactions. 6 steps to prove de minimus and written documentation to prove antique meaning over 100 years old - no one was providing that type of documentation at that time.
It will probably require a test case to go to court and who wants to be the one that funds that?

[ben4372]

Is it silly to ask if one can distingish Asian from African just by looking? This is such a pain in the butt.

[BladesNBarrels]

Is it silly to ask if one can distingish Asian from African just by looking? This is such a pain in the butt.

I have displayed Fossil Walrus Ivory with African Elephant and even experts can't tell the difference. They told me that a DNA test is the only positive way to confirm the material.
Who is going to do that? But, it is your responsibility to prove that it isn't African or Asian Elephant Ivory (that has been totally banned).
Isn't one of the basic premises of our legal system that you are innocent or truthful until proven guilty or deceptive?

[Rumline]

^ Tell that to New Jersey re: gun laws.

[BladesNBarrels]

The Elephant Protection Association is one of the organizations that are supported by artists that make their living scrimshanding legal elephant ivory.
They led the battle to prevent the onerous restrictions placed by the Obama administration on the sale and exchange of elephant ivory that was legally imported and traded under CITES.
Below is their latest communication.

Dear Friends,

With the election of Donald Trump, there are new possibilities for restoring some sanity in the way the government approaches ivory and elephants.
During the last few months, our group didn’t advocate for either presidential candidate. We felt like we had said pretty much all that needed to be said about the relationship between the Clinton Foundation and animal rights groups long before this election kicked into high gear. Given the negativity and high level of emotions in this race, we didn’t see the benefit of injecting issues about ivory and elephants into a debate where other issues sucked up all of the oxygen.
Now that the election is over, it is clear that people who favor ivory trade and rational conservation policies for elephants and other threatened species have options that we would not have had if Hillary Clinton were elected president.
A new administration brings new leadership. Under Clinton, we would have expected the cozy relationship between NGOs and FWS to become tighter. Under Trump, the Clinton insiders on the President’s Advisory Council on Wildlife Trafficking have become political outsiders. There is a chance for fresh thinking about how to protect wildlife and the Constitutional protection of private property.
On the other hand, NGOs are not going away. Out-of-power bureaucrats will flock to them, continue to try to create hysteria, raise money, and try to retain their relevance. I think it is fair to expect that they will continue to strike in federal and state levels wherever they can. The reaction to overbearing central government is not just an American phenomenon, and these fights will play out at the international level, too.
To prepare for the upcoming political environment, the Elephant Protection Association needs to know if it has your support. We have decisions we have to make about our website and the level of engagement we will plan going forward. Without financial contributions, we won’t be able to do much.
I know a lot of people are still reeling from the limitations that have been placed on ivory trade by the Federal Rule and various state laws. If you contribute to us, we will use your support to do all we can to restore the law to actually protecting wildlife and private property owners alike.
Contribute Here
www.elephantprotection.org

Rob Mitchell
Elephant Protection Association

[ray1970]

So, maybe someday I will be able to put a nice set of ivory grips on one of my Glock 19's?