Some of the regulations require proof that is almost impossible to attain, and
it seems to me that this below is still a grey area as far as the exemption for less than 200 grams.
Copy of minimis exception from Kniferights.org:
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.
Interstate Commerce
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.
