Bill Text: HI SB2643 | 2016 | Regular Session | Introduced
Bill Title: Wildlife protection; Import and Sale of Ivory and Rhinoceros Horn; Prohibitions; Penalties
Spectrum: Partisan Bill (Democrat 9-0)
Status: (Introduced - Dead) 2016-02-03 - Re-Referred to WLA/CPH, JDL/WAM. [SB2643 Detail]
Download: Hawaii-2016-SB2643-Introduced.html
|
THE SENATE |
S.B. NO. |
2643 |
|
TWENTY-EIGHTH LEGISLATURE, 2016 |
|
|
|
STATE OF HAWAII |
|
|
|
|
|
|
|
|
||
|
|
||
A BILL FOR AN ACT
relating to wildlife protection.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the trafficking of elephant ivory and rhinoceros horn has increased during recent decades. Despite laws enacted to protect endangered elephants, an average of thirty-five thousand African elephants are slaughtered every year and are near extinction. Asian elephants are also severely threatened by ivory trafficking. If poaching rates continue, scientists expect that elephants will become extinct within the next few decades.
The legislature further finds that ivory from other animal species, such as hippopotamus, narwhal, walrus, and whale, may be difficult to distinguish visually from elephant ivory without further analysis. Ivory artifacts from prehistoric mammoths and mastodons are used in the ivory trade and enforcement officials have difficulty in visually distinguishing mammoth and mastodon ivory from other types of ivory. Additionally, the current worldwide population of rhinoceroses living in the wild has decreased to twenty-nine thousand. More than one thousand rhinoceroses in South Africa were killed in 2013 for their horns. Therefore, the legislature finds that the most effective way to prevent the illegal trafficking of animal ivory and rhinoceros horn is to eliminate the markets for and profits of wildlife traffickers.
An investigation conducted by Save the Elephants and Care for the Wild International found that Hawaii is the third leading retailer of elephant ivory in the United States behind New York and California. Despite federal laws and regulations, this investigation found that eighty-nine per cent of ivory sold in Hawaii is of unknown or likely illegal origin. Since the Convention on International Trade in Endangered Species banned the international sale of ivory from an African elephant imported after 1990, fraudulent documents are used in an attempt to circumvent existing laws and regulations.
Wildlife and animal welfare experts agree that an effective method to save the critically endangered elephant and rhinoceros is to prohibit the intrastate sale of ivory or rhinoceros horn. In 2014 and 2015, New York, New Jersey, California, and Washington enacted laws to prohibit the sale of most ivory and rhinoceros horn.
Furthermore, the legislature adopted S.C.R. No. 149, S.D. 1 (Regular Session of 2013), urging Hawaii residents and businesses to comply with the Convention on International Trade in Endangered Species and to not buy or sell ivory of unknown origin. However, ivory of unknown origin and age continues to be sold in Hawaii.
The legislature concludes that the protection of animals with ivory teeth and tusks and rhinoceros is an important public policy necessitating the prohibition of the sale and trade of their derivative products in Hawaii. Personal possession and transfer by bequest of lawfully acquired ivory and rhinoceros horn will continue to be permitted.
The purpose of this Act is to protect all species of animals with ivory teeth and tusks and all rhinoceroses by prohibiting the importation, sale, barter, or possession with the intent to sell of any ivory, ivory product, rhinoceros horn, or rhinoceros horn product.
SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
"Chapter
unlawful sale or trade of ivory or rhinoceros horn
§ -1 Findings and purpose. The legislature finds that African elephants are nearing extinction and Asian elephants are severely threatened because of poachers who supply elephant ivory for commercial sale, the high price of ivory, and high consumer demand. Furthermore, the worldwide population of all species of rhinoceros living in the wild has decreased because of poachers killing rhinoceroses for their horns. The legislature finds it necessary to prohibit the sale of ivory products from a range of animals having ivory teeth or tusks because it is difficult to distinguish elephant ivory from ivory of another animal species, and to prohibit the sale of rhinoceros horn and rhinoceros horn product.
The purpose of this chapter is to take positive actions to enhance prospects for the continued existence of elephants and other wildlife species with ivory teeth or tusks as well as rhinoceroses by establishing the offense of unlawful sale or trade of ivory products, rhinoceros horn, or rhinoceros horn product and to prohibit any person from selling or importing with the intent to sell any ivory products, rhinoceros horn, or rhinoceros horn product, with certain exceptions.
§ -2 Definitions. As used in this chapter unless the context otherwise requires:
"Bona fide educational or scientific institution" means an institution that establishes through documentation:
(1) An educational or scientific tax exemption from the Internal Revenue Service or the institution's national, state, or local tax authority; or
(2) An accreditation as an educational or scientific institution from a qualified national, regional, state, or local authority, as applicable.
"Department" means the department of land and natural resources.
"Distribution" means a transfer or change in possession with an accompanying change in legal ownership.
"Ivory" means any tooth or tusk or part of a tooth or tusk from:
(1) Any species of elephant;
(2) A hippopotamus;
(3) A mammoth or mastodon;
(4) A walrus;
(5) A whale; or
(6) A narwhal,
or any piece thereof, whether raw or worked. Ivory includes any product containing or advertised as containing ivory.
"Person" means the same as in section 711-1108.5.
"Rhinoceros horn" means the horn, any piece of the horn, or any derivative of the horn, such as powder, of any species of rhinoceros, whether raw or worked. "Rhinoceros horn" includes any product containing or advertised as containing any rhinoceros horn.
"Sale" or "sell" means all acts of selling, trading, or bartering for monetary or nonmonetary consideration or distribution in the consumer marketplace, including internet sales.
"Value of the ivory or rhinoceros horn" means the fair market value of or actual price paid for the ivory or rhinoceros horn, whichever is greater.
§ -3 Unlawful sale or trade of ivory or rhinoceros horn. (a) Except as provided in subsections (b) and (d), a person shall not import, purchase, sell, offer for sale, possess with intent to sell, import with intent to sell, or export with intent to sell ivory or rhinoceros horn.
(b) The prohibitions set forth in subsection (a) shall not apply to:
(1) An employee or agent of the federal or state government undertaking a law enforcement activity pursuant to federal or state law, or a mandatory duty required by federal law;
(2) Any activity that is expressly authorized by federal law; and
(3) Ivory that is part of a bona fide antique if:
(A) The ivory is pre-Convention (removed from the wild prior to February 26, 1976 - the date the African elephant was first listed under the Convention on International Trade in Endangered Species) if it is elephant ivory;
(B) The ivory or rhinoceros horn is a fixed component or components of a larger manufactured item and is not, in its current form, the primary source of value of the item;
(C) The total weight of the ivory or rhinoceros horn component or components is less than 200 grams;
(D) The manufactured item is not made wholly or primarily of ivory or rhinoceros horn;
(E) The ivory is not raw; and
(F) The owner or seller provides historical documentation demonstrating provenance and showing that the item is not less than one hundred years old if it is an antique.
(c) It shall be presumptive evidence of possession with intent to sell ivory or rhinoceros horn if the ivory or rhinoceros horn is possessed in a retail or wholesale outlet commonly used for the buying or selling of similar items. This presumption shall not preclude a finding of intent to sell based on any other evidence that may serve to independently establish that intent. The act of obtaining an appraisal of ivory or rhinoceros horn shall not, by itself, constitute possession with intent to sell.
(d) Nothing contained in this section shall be construed to prohibit:
(1) The exercise of traditional cultural practices as authorized by law or as permitted by the department pursuant to article XII, section 7, of the Hawaii State Constitution;
(2) Private possession of ivory or rhinoceros horn not intended for sale;
(3) Lawful conveyances of ivory or rhinoceros horn as part of a family inheritance, will, estate, or trust; and
(4) The sale or trade of any teeth or tusk from species not specified in subsection (a), including sus scrofa.
§ -4 Penalties. A person convicted of committing the offense of unlawful sale or trade of ivory or rhinoceros horn shall be sentenced as follows:
(1) For the first offense, the person shall be guilty of a misdemeanor and shall be fined not less than $1,000 or an amount equal to two times the total value of the ivory or rhinoceros horn involved in the offense, whichever is greater, or may be sentenced to a term of imprisonment, or both; and
(2) For any subsequent offense, the person shall be guilty of a class C felony and shall be fined not less than $5,000 or an amount equal to two times the total value of the ivory or rhinoceros horn involved in the offense, whichever is greater, or may be sentenced to a term of imprisonment, or both.
§ -5 Search and seizure; disposition of seized ivory and rhinoceros horn. Any officer or agent authorized pursuant to this chapter shall have the authority to conduct searches as provided by law and to seize any ivory or rhinoceros horn and any related equipment or business records found in violation of this chapter or other applicable law. Any of the foregoing items so seized shall be held by the department pending disposition of court proceedings. Upon conviction of the person or persons from whom the seizure was made, the court shall declare the seized items forfeited to the State. The items shall be destroyed or offered to a bona fide educational or scientific institution permitted by law to possess the items for education or scientific activities.
§ -6 Remedies. Nothing in this chapter shall be construed to prohibit or impair any civil or administrative action or penalty available in law or equity.
§ -7 Rules. The department may adopt rules pursuant to chapter 91 to effectuate the purposes of this chapter."
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 4. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 5. This Act shall take effect on July 1, 2018; provided that upon its enactment, the department of land and natural resources may take steps necessary to prepare for implementation of this Act on July 1, 2018.
|
INTRODUCED BY: |
_____________________________ |
|
|
|
Report Title:
Wildlife protection; Import and Sale of Ivory and Rhinoceros Horn; Prohibitions; Penalties
Description:
Establishes the offense of the unlawful sale or trade of ivory or rhinoceros horn for any person who sells, offers to sell, possesses with the intent to sell, or imports with the intent to sell any ivory or rhinoceros horn. Creates exemptions for the sale or trade of ivory or rhinoceros horn.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
