The Rule explicitly shifts the burden on to the SELLER TO PROVE that your antique or de minimis ivory items meet ALL THE CRITERIA. FWS reiterated that the rules for antiques and the de minimis exception are entirely different matters. 

FWS discussed the value of experts and professional appraisers in establishing the age or provenance of an item.  Expert opinions are useful, but not determinative.  Any expert needs to be prepared to document the basis behind an opinion. 

The Service indicates that all of the de minimis exception’s criteria will be strictly enforced together, and that FAILURE OF ONE CRITERIA means the exception does not apply.  They used chess sets to clarify that it is not the weight of individual pieces, but the weight of the complete set that would disqualify these items from this exception.

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 rules.  Instead, IT IS UP TO THE DISCRETION OF ENFORCEMENT PERSONEL whether proof or documentation in any given case is sufficient to prove whether an item is an antique or meets the de minimis exception.  The Service said that more guidance would be forthcoming.

The words “or integral” were added to the de minimis exception criterion in paragraph (e)(3) that describes ivory being a fixed component of a larger manufactured or handcrafted item.  This change clarifies that items like gun grips, 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, the rule would not allow gun grips, knife handles, ivory nuts or other components made from ivory to be sold or traded independently.“Interstate commerce” is a legal term open to an exceptionally broad interpretation.  In today’s world, the vast majority of commercial transactions have an interstate connection.  Advertising, on the internet or otherwise, could implicate interstate commerce.  Even if you sell out of a shop in the state you live in, out-of-state customers or alleged “straw man” deals could violate the law.  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.
Potential problems for the average individual
The Rule explicitly shifts the burden on to the SELLER TO PROVE that your antique or de minimis ivory items meet ALL THE CRITERIA. FWS reiterated that the rules for antiques and the de minimis exception are entirely different matters.

FWS discussed the value of experts and professional appraisers in establishing the age or provenance of an item. Expert opinions are useful, but not determinative. Any expert needs to be prepared to document the basis behind an opinion.

The Service indicates that all of the de minimis exception’s criteria will be strictly enforced together, and that FAILURE OF ONE CRITERIA means the exception does not apply. They used chess sets to clarify that it is not the weight of individual pieces, but the weight of the complete set that would disqualify these items from this exception.

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 rules. Instead, IT IS UP TO THE DISCRETION OF ENFORCEMENT PERSONEL whether proof or documentation in any given case is sufficient to prove whether an item is an antique or meets the de minimis exception. The Service said that more guidance would be forthcoming.

The words “or integral” were added to the de minimis exception criterion in paragraph (e)(3) that describes ivory being a fixed component of a larger manufactured or handcrafted item. This change clarifies that items like gun grips, 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, the rule would not allow gun grips, knife handles, ivory nuts or other components made from ivory to be sold or traded independently.“Interstate commerce” is a legal term open to an exceptionally broad interpretation. In today’s world, the vast majority of commercial transactions have an interstate connection. Advertising, on the internet or otherwise, could implicate interstate commerce. Even if you sell out of a shop in the state you live in, out-of-state customers or alleged “straw man” deals could violate the law. 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.
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