NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A10143
SPONSOR: Rules (Sweeney) 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 Subdivi-
sion 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 arti-
cles 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.
EXISTING LAW:
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 imprison-
ment. 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 § 710-925(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 endan-
gered since the 1970's, elephant and rhinoceros populations across Afri-
ca 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 Conserva-
tion 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 45 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 §
11-0536 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 arti-
cles 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
________________________________________________________________________
10143
IN ASSEMBLY
June 16, 2014
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Sweeney) --
(at request of the Governor) -- read once and referred to the Commit-
tee on Codes
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:
1 Section 1. The environmental conservation law is amended by adding a
2 new section 11-0535-a to read as follows:
3 § 11-0535-a. Illegal ivory articles and rhinoceros horns.
4 1. As used in this section:
5 a. "Distribute" means a transfer or change in possession with an
6 accompanying change in legal ownership.
7 b. "Ivory article" means any item containing worked or raw ivory from
8 any species of elephant or mammoth.
9 c. "Raw ivory" means any elephant or mammoth tusk, and any piece
10 thereof, the surface of which, polished, or unpolished, is unaltered or
11 minimally carved.
12 d. "Worked ivory" means any elephant or mammoth tusk, and any piece
13 thereof, which is not raw ivory.
14 2. Except as otherwise provided in subdivision three of this section,
15 no person shall sell, offer for sale, purchase, trade, barter or
16 distribute an ivory article or rhinoceros horn.
17 3. Unless such activity is prohibited by federal law, rule or regu-
18 lation, the commissioner may issue licenses or permits for the sale,
19 offering for sale, purchase, trading, bartering or distribution of ivory
20 articles or rhinoceros horns, provided that:
21 a. the ivory article or rhinoceros horn is part of a bona fide antique
22 and is less than twenty percent by volume of such antique, and the
23 antique status of such antique is established by the owner or seller
24 thereof with historical documentation evidencing provenance and showing
25 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
A. 10143 2
1 b. the distribution or change of possession of the ivory article or
2 rhinoceros horn is for bona fide educational or scientific purposes, or
3 to a museum chartered by the board of regents pursuant to the education
4 law; or
5 c. the distribution of the ivory article or rhinoceros horn is to a
6 legal beneficiary of a trust or to an heir or distributee of an estate;
7 or
8 d. the ivory article or rhinoceros horn is part of a musical instru-
9 ment, including, without limitation, string and wind instruments and
10 pianos, and the owner or seller provides historical documentation as the
11 department may require, demonstrating provenance and showing the item
12 was manufactured no later than nineteen hundred seventy-five.
13 § 2. Section 71-0924 of the environmental conservation law, as added
14 by chapter 69 of the laws of 1988, and subdivision 4 as amended by chap-
15 ter 417 of the laws of 1996, is amended to read as follows:
16 § 71-0924. Illegal commercialization of fish, shellfish, crustaceans,
17 and wildlife.
18 Notwithstanding any other provision of this chapter, when a violation
19 involves the sale, trade or barter of fish, shellfish, crustaceans,
20 wildlife, or parts thereof, the sale, trade or barter of which is
21 prohibited by the fish and wildlife law, the following additional penal-
22 ties shall be imposed:
23 1. where the value of fish, shellfish, crustaceans, wildlife, or parts
24 thereof, is two hundred fifty dollars or less, the offense shall be a
25 violation punishable by a fine of five hundred dollars and/or not more
26 than fifteen days of imprisonment;
27 2. where the value of fish, shellfish, crustaceans, wildlife, or parts
28 thereof, is more than two hundred fifty dollars but does not exceed one
29 thousand five hundred dollars, the offense shall be a misdemeanor
30 punishable by a fine of five thousand dollars and/or not more than one
31 year of imprisonment; [and]
32 3. where the value of fish, shellfish, crustaceans, wildlife, or parts
33 thereof, exceeds one thousand five hundred dollars, the offense shall
34 constitute a class E felony under the provisions of the penal law[.];
35 and
36 4. where the value of ivory articles, as defined in section 11-0535-a
37 of this chapter, exceeds twenty-five thousand dollars, the offense shall
38 constitute a class D felony under the provisions of the penal law.
39 [4.] 5. For the purposes of this section the value of fish, shellfish,
40 crustaceans and wildlife shall be the fair market value of or actual
41 price paid for such resource, whichever is greater. For purposes of
42 this section, "sale" shall include the acts of selling, trading or
43 bartering and all related acts, such as the act of offering for sale,
44 trade or barter, and shall also include the illegal possession of fish,
45 shellfish, wildlife or crustacea with intent to sell. It shall be
46 presumptive evidence of possession with intent to sell when such fish,
47 shellfish, wildlife or crustacea is possessed in quantities exceeding
48 the allowable recreational quantities, or is possessed in a retail or
49 wholesale outlet commonly used for the buying or selling of such fish,
50 shellfish, wildlife or crustacea, provided, however, that nothing in
51 this subdivision shall preclude the admission of other evidence which
52 may serve to independently prove a defendant's intent to sell.
53 § 3. Section 71-0925 of the environmental conservation law is amended
54 by adding a new subdivision 16 to read as follows:
55 16. If the violation was an act prohibited by section 11-0535-a of
56 this chapter, not more than three thousand dollars or not more than two
A. 10143 3
1 times the value of the article involved, whichever is greater. If the
2 violation is a second or subsequent violation of such section 11-0535-a,
3 not more than six thousand dollars or not more than three times the
4 value of the article involved, whichever is greater.
5 § 4. Within 30 days of the effective date of this act, the department
6 of environmental conservation shall maintain on its website information
7 regarding the prohibition on the sale and purchase of ivory articles and
8 rhinoceros horns in the state.
9 § 5. Severability. If any clause, sentence, paragraph, section or part
10 of this act shall be adjudged by any court of competent jurisdiction to
11 be invalid and after exhaustion of all further judicial review, the
12 judgment shall not affect, impair or invalidate the remainder thereof,
13 but shall be confined in its operation to the clause, sentence, para-
14 graph, section or part of this act directly involved in the controversy
15 in which the judgment shall have been rendered.
16 § 6. No later than January 1, 2020, the department of environmental
17 conservation shall prepare a report outlining enforcement activities and
18 recommendations regarding any necessary changes, including but not
19 limited to the extension or repeal of this act.
20 § 7. This act shall take effect immediately; provided, however, any
21 person who has been issued a license or permit allowing the sale of
22 elephant ivory articles or rhinoceros horns prior to the effective date
23 of this act may sell such articles listed on such license or permit
24 until such license or permit has expired.
