A10143 Summary:

BILL NO    A10143 

SAME AS    SAME AS S07890

SPONSOR    Rules (Sweeney)

COSPNSR    Skoufis, Abinanti, Lupardo, Fahy, Paulin, Rosenthal, Otis, Schimel,
           Barrett, Lifton, Gottfried, Zebrowski, Titone, Weisenberg, Kavanagh,
           Glick, Hennessey, Lupinacci, Raia, Stec, Weinstein

MLTSPNSR   

Add S11-0535-a, amd SS71-0924 & 71-0925, En Con L

Prohibits the sale, purchase, trade, barter and distribution of certain ivory
articles and rhinoceros horns.
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A10143 Actions:

BILL NO    A10143 

06/16/2014 referred to codes
06/18/2014 reported referred to rules
06/18/2014 reported 
06/19/2014 rules report cal.523
06/19/2014 ordered to third reading rules cal.523
06/19/2014 passed assembly
06/19/2014 delivered to senate
06/19/2014 REFERRED TO RULES
06/19/2014 SUBSTITUTED FOR S7890
06/19/2014 3RD READING CAL.1656
06/19/2014 PASSED SENATE
06/19/2014 RETURNED TO ASSEMBLY
08/08/2014 delivered to governor
08/12/2014 signed chap.326
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A10143 Memo:

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.
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A10143 Text:



 
                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.
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