THE SENATE

S.B. NO.

674

TWENTY-EIGHTH LEGISLATURE, 2015

 

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. In 2013, approximately forty-one tons of illegal ivory was confiscated worldwide. Despite laws enacted to protect endangered elephants, an average of thirty-five thousand African elephants are slaughtered every year. If this poaching rate continues, scientists expect elephants will become extinct within the next few decades.

Furthermore, the ivory from other animal species, such as hippopotamus, narwhal, walrus, and whale, is difficult to distinguish visually from elephant ivory without a DNA analysis. Thus, the protection of elephants may inadvertently draw poachers to these animal species for their ivory teeth or tusks. Ivory artifacts from prehistoric mammoths are also targets in the ivory trade. Like the ivory products from hippopotamus, narwhal, walrus, and whale, enforcement officials have difficulty in visually distinguishing mammoth ivory from elephant ivory. Lastly, 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 sponsored by The Humane Society of the United States and Humane Society International found that Hawaii is the third highest retailer of elephant ivory in the United States. Despite laws and regulations, 89 per cent of ivory sold in Hawaii is likely illegal or of unknown origin. Since the Convention on International Trade in Endangered Species has banned the international sale of ivory from an African elephant imported after 1990, fraudulent documents are used to circumvent existing laws and regulations or documents make false claims that the ivory predates 1990.

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. New York and New Jersey enacted legislation in August 2014 to prohibit the sale of 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 of Wild Fauna and Flora and to not buy or sell ivory of unknown origin. However, ivory of unknown origin and age continues to be sold in Hawaii.

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 due to 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 due to poachers killing rhinoceroses for their horns. Despite laws and regulations prohibiting the sale of African elephant ivory imported after 1990, much of the ivory sold in Hawaii is likely illegal or of unknown origin. 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 prohibit the sale of rhinoceros horn.

The purpose of this chapter is to take positive actions to enhance prospects for the continued existence of African elephants and other animal species with ivory teeth or tusks, and rhinoceroses by establishing the offense of unlawful sale or trade of ivory products or rhinoceros horn to prohibit any person from selling or importing with the intent to sell any ivory or rhinoceros horn, regardless of its age.

   -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 from any species of wildlife, including but not limited to:

(1) All species of elephant;

(2) Hippopotamus;

(3) Mammoth;

(4) Walrus;

(5) Whale; or

(6) Narwhal;

or any piece thereof, whether raw or worked ivory. "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. "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) A person commits the offense of unlawful sale or trade of ivory or rhinoceros horn if the person sells, offers to sell, possesses with the intent to sell, or imports with the intent to sell any ivory or rhinoceros horn.

(b) It shall be presumptive evidence of possession with the intent to sell when the ivory or rhinoceros horn is possessed in a retail or wholesale outlet commonly used for the buying or selling of ivory or rhinoceros horn. This presumption shall not preclude a finding of intent to sell based on any other evidence that may serve to independently to establish the intent to sell.

(c) 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 the person 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 the person may be sentenced to a term of imprisonment, or both.

   -4 Exemptions. This chapter shall not apply to:

(1) Employees or agents of the federal or state government undertaking any law enforcement activities pursuant to federal or state law, or any mandatory duties required by federal or state law;

(2) Persons importing ivory or rhinoceros horn, or any activity, that is expressly authorized by federal law; and

(3) Persons possessing a permit authorized by the department to sell, offer to sell, possess with the intent to sell, or import with the intent to sell any ivory or rhinoceros horn for educational or scientific purposes by a bona fide educational or scientific institution, unless the sale or importation of ivory or rhinoceros horn is prohibited by federal law or regulation; provided that the ivory or rhinoceros horn was legally acquired no later than July 1, 1990, and was not subsequently transferred from one person to another for financial gain or profit on or after July 1, 2015.

   -5 Disposition of seized ivory and rhinoceros horn. For a violation of this chapter, any seized ivory or rhinoceros horn shall be subject to forfeiture pursuant to chapter 712A. Ivory and rhinoceros horn seized and forfeited shall be destroyed or offered to an institution possessing a permit from the department for educational or scientific purposes pursuant to section    -4.

   -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 shall 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 January 1, 2016.

 

INTRODUCED BY:

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Report Title:

Animal Cruelty; 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. Effective 01/01/16.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.