Prohibits the sale, purchase, trade, barter and distribution of certain ivory articles and rhinoceros horns.
TITLE OF BILL: An act to amend the environmental conservation law, in relation to prohibiting the purchase and sale of ivory articles and rhinoceros horns and increasing the penalties for the illegal sale of such articles
Purpose: This bill would prohibit the purchase and sale of ivory articles and rhinoceros horns, with limited exceptions, and increase the criminal and civil penalties for the illegal sale of these articles.
Summary of Provisions:
Section 1 of the bill would add section 11-0535-a to the Environmental Conservation Law (ECL). Subdivision 1 of ECL § 11-0535-a would define terms for purposes of the section. Subdivision 2 would prohibit the sale, offer for sale, purchase, trade, barter, or distribution of ivory articles and rhinoceros horns except as otherwise provided in Subdivision 3. Subdivision 3 would authorize the Department of Environmental Conservation (DEC) to issue licenses or permits for the sale, offering for sale, purchase, trading, bartering, or distribution of ivory articles or rhinoceros horns in limited situations.
Section 2 of the bill would amend ECL § 71-0924 to establish a Class D felony penalty for the illegal sale, trade, or barter of ivory articles with a value exceeding $25,000.
Section 3 of the bill would add subdivision 16 to ECL § 71-0925 to increase the civil penalties for violations of ECL § 11-0535-a.
Section 4 of the bill would require that within 30 days DEC maintain information on its website regarding the prohibition on the sale and distribution of ivory articles and rhinoceros horns.
Section 5 of the bill contains a severability clause.
Section 6 of the bill would require DEC, no later than January 1, 2020, to prepare a report outlining enforcement activities and recommendations regarding any necessary statutory changes.
Section 7 of the bill sets forth the effective date.
The State's endangered and threatened species law, ECL § 11-0535, prohibits the taking, importation, transportation, possession, or sale of any endangered or threatened species of fish, shellfish, crustacea or wildlife, except under license or permit from DEC. ECL § 11-0536(1) prohibits the sale and offer for sale of Black Rhinoceros and Sumatran Rhinoceros, or any part thereof, whether raw or manufactured.
Pursuant to ECL § 71-0923, a violation of ECL § 11-0535 or § 11-0536 is a violation level offense, punishable by fine of not more than $250, imprisonment for not more than 15 days, or both such fine and imprisonment. ECL § 71-0924 sets forth the fines and penalties applicable to the illegal commercialization of fish, shellfish,
crustaceans, and wildlife. Subdivision (3) of ECL § 71-0924 establishes a Class E felony for the illegal commercialization of fish, shellfish, crustaceans or wildlife, or parts thereof, valued above $1,500. ECL § 710925(13) sets forth the civil penalties. for violations of ECL §§ 11-0535 and 11-0536.
Statement in Support: The demand for illegal wildlife and wildlife products in the United States, including New York, is driving many species towards extinction. Despite being listed as threatened or endangered since the 1970's, elephant and rhinoceros populations across Africa and Asia are moving towards extinction. These animals are being slaughtered at an alarming rate to meet the needs of the ivory and horn trade, much of which is unlicensed and illegal. The Wildlife Conservation Society estimates that in Africa alone 96 elephants are slaughtered each day. This dire situation is exemplified by the recent death of Satao, an iconic 4.5 year old Kenyan elephant believed to be one of the world's largest living elephants and well-known for having long tusks that nearly reached the ground. Satao was so severely mutilated by the poachers that it took several days for investigators to identify him. In South Africa, the record slaughter of 1,004 rhinos in 2013 is more than twice the number killed in 2011, according to government-released figures.
The high consumer demand for ivory and horn products in New York is especially troubling. A joint investigation in 2012 by DEC and the U.S. Fish and Wildlife Service resulted in the seizure of over $2 million worth of elephant ivory from jewelers in New York City. The core problem is the economic opportunity created by the demand for ivory and horn. The existing penalties are not high enough to deter violations. Under the existing statutory framework, a violation of
ECL § 11-0535 or § 11-0.536 is only a violation level offense. This is the lowest offense specified under New York law. The penalty for a violation includes a fine structure of between $0 and $250 and a maximum of 15 days in jail. In reality, few defendants convicted of a violation ever serve jail time. ECL § 71-0924, which sets penalties for illegal commercialization of fish, shellfish, crustaceans, or wildlife, serves as one of the primary tools available to law enforcement against the illegal trade in ivory. This law, however, is out-of-date and no longer provides meaningful deterrence. Currently, those involved in the illegal sale of wildlife parts, such as ivory, can only be charged with a maximum offense of an E felony, the lowest felony under State law. An individual selling $150,000 worth of illegal ivory can only be charged with the same level of offense as an individual selling $15,000, or even just $1,501 worth of illegal ivory.
Given the potential profits and volume of ivory and horn sales in New York, the current law is not sufficient to have any detrimental effect on the present market. This bill, by expressly prohibiting the trade of ivory and rhinoceros horns with very limited exceptions and increasing fines and penalties, would help deter the illegal trade in these articles in New York.
Budget implications: None.
Effective Date: The bill would take effect immediately; provided, however, any person who has been issued a license or permit allowing the sale of ivory articles or rhinoceros horns before the bill's effective date may sell such articles listed on such license or permit until such license or permit has expired.
STATE OF NEW YORK ________________________________________________________________________ 7890 IN SENATE June 16, 2014 ___________Introduced by Sens. LANZA, AVELLA -- (at request of the Governor) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the environmental conservation law, in relation to prohibiting the purchase and sale of ivory articles and rhinoceros horns and increasing the penalties for the illegal sale of such arti- cles THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The environmental conservation law is amended by adding a new section 11-0535-a to read as follows: S 11-0535-A. ILLEGAL IVORY ARTICLES AND RHINOCEROS HORNS. 1. AS USED IN THIS SECTION: A. "DISTRIBUTE" MEANS A TRANSFER OR CHANGE IN POSSESSION WITH AN ACCOMPANYING CHANGE IN LEGAL OWNERSHIP. B. "IVORY ARTICLE" MEANS ANY ITEM CONTAINING WORKED OR RAW IVORY FROM ANY SPECIES OF ELEPHANT OR MAMMOTH. C. "RAW IVORY" MEANS ANY ELEPHANT OR MAMMOTH TUSK, AND ANY PIECE THEREOF, THE SURFACE OF WHICH, POLISHED, OR UNPOLISHED, IS UNALTERED OR MINIMALLY CARVED. D. "WORKED IVORY" MEANS ANY ELEPHANT OR MAMMOTH TUSK, AND ANY PIECE THEREOF, WHICH IS NOT RAW IVORY. 2. EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION THREE OF THIS SECTION, NO PERSON SHALL SELL, OFFER FOR SALE, PURCHASE, TRADE, BARTER OR DISTRIBUTE AN IVORY ARTICLE OR RHINOCEROS HORN. 3. UNLESS SUCH ACTIVITY IS PROHIBITED BY FEDERAL LAW, RULE OR REGU- LATION, THE COMMISSIONER MAY ISSUE LICENSES OR PERMITS FOR THE SALE, OFFERING FOR SALE, PURCHASE, TRADING, BARTERING OR DISTRIBUTION OF IVORY ARTICLES OR RHINOCEROS HORNS, PROVIDED THAT: A. THE IVORY ARTICLE OR RHINOCEROS HORN IS PART OF A BONA FIDE ANTIQUE AND IS LESS THAN TWENTY PERCENT BY VOLUME OF SUCH ANTIQUE, AND THE ANTIQUE STATUS OF SUCH ANTIQUE IS ESTABLISHED BY THE OWNER OR SELLER THEREOF WITH HISTORICAL DOCUMENTATION EVIDENCING PROVENANCE AND SHOWING THE ANTIQUE TO BE NOT LESS THEN ONE HUNDRED YEARS OLD;EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD12104-01-4 S. 7890 2
B. THE DISTRIBUTION OR CHANGE OF POSSESSION OF THE IVORY ARTICLE OR RHINOCEROS HORN IS FOR BONA FIDE EDUCATIONAL OR SCIENTIFIC PURPOSES, OR TO A MUSEUM CHARTERED BY THE BOARD OF REGENTS PURSUANT TO THE EDUCATION LAW; OR C. THE DISTRIBUTION OF THE IVORY ARTICLE OR RHINOCEROS HORN IS TO A LEGAL BENEFICIARY OF A TRUST OR TO AN HEIR OR DISTRIBUTEE OF AN ESTATE; OR D. THE IVORY ARTICLE OR RHINOCEROS HORN IS PART OF A MUSICAL INSTRU- MENT, INCLUDING, WITHOUT LIMITATION, STRING AND WIND INSTRUMENTS AND PIANOS, AND THE OWNER OR SELLER PROVIDES HISTORICAL DOCUMENTATION AS THE DEPARTMENT MAY REQUIRE, DEMONSTRATING PROVENANCE AND SHOWING THE ITEM WAS MANUFACTURED NO LATER THAN NINETEEN HUNDRED SEVENTY-FIVE. S 2. Section 71-0924 of the environmental conservation law, as added by chapter 69 of the laws of 1988, and subdivision 4 as amended by chap- ter 417 of the laws of 1996, is amended to read as follows: S 71-0924. Illegal commercialization of fish, shellfish, crustaceans, and wildlife. Notwithstanding any other provision of this chapter, when a violation involves the sale, trade or barter of fish, shellfish, crustaceans, wildlife, or parts thereof, the sale, trade or barter of which is prohibited by the fish and wildlife law, the following additional penal- ties shall be imposed: 1. where the value of fish, shellfish, crustaceans, wildlife, or parts thereof, is two hundred fifty dollars or less, the offense shall be a violation punishable by a fine of five hundred dollars and/or not more than fifteen days of imprisonment; 2. where the value of fish, shellfish, crustaceans, wildlife, or parts thereof, is more than two hundred fifty dollars but does not exceed one thousand five hundred dollars, the offense shall be a misdemeanor punishable by a fine of five thousand dollars and/or not more than one year of imprisonment;
[and]3. where the value of fish, shellfish, crustaceans, wildlife, or parts thereof, exceeds one thousand five hundred dollars, the offense shall constitute a class E felony under the provisions of the penal law [.]; AND 4. WHERE THE VALUE OF IVORY ARTICLES, AS DEFINED IN SECTION 11-0535-A OF THIS CHAPTER, EXCEEDS TWENTY-FIVE THOUSAND DOLLARS, THE OFFENSE SHALL CONSTITUTE A CLASS D FELONY UNDER THE PROVISIONS OF THE PENAL LAW. [4.]5. For the purposes of this section the value of fish, shellfish, crustaceans and wildlife shall be the fair market value of or actual price paid for such resource, whichever is greater. For purposes of this section, "sale" shall include the acts of selling, trading or bartering and all related acts, such as the act of offering for sale, trade or barter, and shall also include the illegal possession of fish, shellfish, wildlife or crustacea with intent to sell. It shall be presumptive evidence of possession with intent to sell when such fish, shellfish, wildlife or crustacea is possessed in quantities exceeding the allowable recreational quantities, or is possessed in a retail or wholesale outlet commonly used for the buying or selling of such fish, shellfish, wildlife or crustacea, provided, however, that nothing in this subdivision shall preclude the admission of other evidence which may serve to independently prove a defendant's intent to sell. S 3. Section 71-0925 of the environmental conservation law is amended by adding a new subdivision 16 to read as follows: 16. IF THE VIOLATION WAS AN ACT PROHIBITED BY SECTION 11-0535-A OF THIS CHAPTER, NOT MORE THAN THREE THOUSAND DOLLARS OR NOT MORE THAN TWOS. 7890 3
TIMES THE VALUE OF THE ARTICLE INVOLVED, WHICHEVER IS GREATER. IF THE VIOLATION IS A SECOND OR SUBSEQUENT VIOLATION OF SUCH SECTION 11-0535-A, NOT MORE THAN SIX THOUSAND DOLLARS OR NOT MORE THAN THREE TIMES THE VALUE OF THE ARTICLE INVOLVED, WHICHEVER IS GREATER. S 4. Within 30 days of the effective date of this act, the department of environmental conservation shall maintain on its website information regarding the prohibition on the sale and purchase of ivory articles and rhinoceros horns in the state. S 5. Severability. If any clause, sentence, paragraph, section or part of this act shall be adjudged by any court of competent jurisdiction to be invalid and after exhaustion of all further judicial review, the judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, para- graph, section or part of this act directly involved in the controversy in which the judgment shall have been rendered. S 6. No later than January 1, 2020, the department of environmental conservation shall prepare a report outlining enforcement activities and recommendations regarding any necessary changes, including but not limited to the extension or repeal of this act. S 7. This act shall take effect immediately; provided, however, any person who has been issued a license or permit allowing the sale of elephant ivory articles or rhinoceros horns prior to the effective date of this act may sell such articles listed on such license or permit until such license or permit has expired.