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S07890 Text:

                STATE OF NEW YORK
                    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-

          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.

        S. 7890                             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

        S. 7890                             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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