HOUSE DOCKET, NO. 1935        FILED ON: 1/15/2015

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1275

The Commonwealth of Massachusetts

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PRESENTED BY:

Lori A. Ehrlich and Jason M. Lewis

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to prevent trafficking in ivory and rhino horns.

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PETITION OF:

HOUSE DOCKET, NO. 1935        FILED ON: 1/15/2015

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1275

The Commonwealth of Massachusetts

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In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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An Act to prevent trafficking in ivory and rhino horns.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

The Legislature finds that wildlife trafficking is one of the world's most lucrative criminal activities. Valued at $7-10 billion annually, it ranks 4th globally in terms of value, just behind the trafficking of drugs, people, and counterfeiting.

The Legislature finds that there is a direct link between the destruction of elephant and rhinoceros populations and the violent actions of global criminal networks. Wildlife traffickers operate primarily within well-organized, transnational criminal and terrorist syndicates that often participate in other illegal activities such as narcotics and weapons trafficking. These groups use poaching as a substantial source of funding for their violent activities, the proliferation of which threatens U.S. national security.

The Legislature finds that trafficking in elephant ivory and rhinoceros horns is at the highest rate ever recorded and that the most effective way to discourage the illegal trafficking is to eliminate markets and profits for traffickers.

The Legislature determines that it is an important public purpose to protect all species of elephants and rhinoceros by prohibiting the import, sale, purchase, barter, or possession with intent to sell, of any ivory, ivory product, rhinoceros horn, or rhinoceros horn product.

SECTION 1: The General Laws are hereby amended by inserting after chapter 131A the following chapter:

CHAPTER 131B

IVORY AND RHINO HORN TRAFFICKING

Section 1.

(a)"Ivory" means a tooth or tusk composed of ivory from an animal, including but not limited to, an elephant, hippopotamus, mammoth, narwhal, walrus, or whale or a piece thereof, whether raw ivory or worked ivory, or made into or part of an ivory product.

(b)"Ivory product" means an item that contains, or that is wholly or partially made from ivory.

(c)"Raw ivory" means polished or unpolished ivory that is unaltered or minimally changed by carving.

(d)"Rhinoceros horn" means the horn, or a piece thereof, of a species of rhinoceros.

(e)"Rhinoceros horn product" means an item that contains or that is wholly or partially made from any rhinoceros horn.

(f)"Total value of the ivory, ivory products, rhinoceros horn, and rhinoceros horn products" means the fair market value of the ivory, ivory products, rhinoceros horn, and rhinoceros horn products, or the actual price paid for the ivory, ivory products, rhinoceros horn, and rhinoceros products, whichever is greater.

(g)"Worked ivory" means embellished, carved, marked, or otherwise altered ivory that can no longer be considered raw ivory.

SECTION 2. Chapter 131B of the General Laws is hereby amended by inserting after section 1 the following section:

Section 2. (a) In addition to the prohibitions and penalties established under M.G.L. ch.131A, §1- 7, and any other applicable law, no person shall import, sell, offer for sale, purchase, barter or possess with intent to sell, any ivory, ivory product, rhinoceros horn or rhinoceros horn product, except as provided in this section.

(b) It shall be prima facia evidence of possession with intent to sell when ivory, an ivory product, rhinoceros horn or rhinoceros horn product is possessed in a retail or wholesale outlet commonly used for buying or selling of similar products, provided, however, that nothing in this subsection shall preclude a finding of intent to sell based on any other evidence which may independently establish such intent.

(c) A person may convey ivory, an ivory product, rhinoceros horn or rhinoceros horn product which is part of an estate or other items being conveyed to lawful beneficiaries upon the death of an owner, to a legal beneficiary.

(d) The prohibitions set forth in this section shall not apply to employees or agents of the federal or state government undertaking law enforcement activities pursuant to federal or state law or any mandatory duties required by federal or state law.

(e) The prohibition on import set forth in subsection (a) of this section shall not apply where the import is expressly authorized by federal license or permit or a lawful permit issued under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

(f) The division of fisheries and wildlife may permit, under terms and conditions as the department may prescribe, the import, sale, offer for sale, purchase, barter, or possession with intent to sell, ivory, ivory product, rhinoceros horn or rhinoceros horn product for bona fide educational purposes or for conducting noncommercial scientific purposes under a permit issued pursuant to subsection (e) of this section, or to a museum, unless this activity is prohibited by federal law.

SECTION 3. Chapter 131B of the General Laws is hereby amended by inserting after section 2 the following section:

Section 3. (a) Whoever violates this section or any rule or regulation adopted under this Chapter shall be punished by:

(1) for a first offense shall be fined not less than $4,000 or an amount equal to two times the total value of the ivory, ivory products, rhinoceros horn, and rhinoceros horn products involved in the offense, whichever is greater; and may be imprisoned up to 18 months.

(2) for a second or subsequent offense, shall be fined not less than $8,000 or an amount equal

to two times the total value of the ivory, ivory products, rhinoceros horn, and rhinoceros horn products involved in the offense, whichever is greater, and may be imprisoned for up to 3 years

(3) for subsequent offenses or for any offense where the value the trafficked ivory and/or rhino horn and other trafficked items combined equals $25,000, may be imprisoned for up to 7 years and fined no less than an amount equal to $100,000.

(b) Upon a conviction for violating the provisions of section 2, the court shall order the seizure of all ivory, ivory products, rhinoceros horn, and rhinoceros horn products involved in the violation and determine the penalty for the violation based on the assessed value of the seized products according to subsection (a) of this section. After sentencing the defendant, the court shall order that the seized ivory, ivory products, rhinoceros horn, and rhinoceros horn products be transferred to the department of environmental protection for proper disposition. The department, at its discretion, may destroy the ivory, ivory products, rhinoceros horn, and rhinoceros horn products or donate them to an educational or scientific institution or organization, including, but not necessarily limited to, a museum or university.

SECTION 4. Chapter 131B of the General Laws is hereby amended by inserting after section 3 the following section:

Section 4. (a) There shall be established and set up on the books of the commonwealth a separate fund, to be known as the Endangered Elephant and Rhino Conservation and Education Fund. The fund shall be used by the department of environmental protection, in consultation with the division of fisheries and wildlife, to increase or expand enforcement efforts related to the provisions of this chapter, to develop or increase education and outreach programs enhancing rhinoceros and African and Asian elephant conservation or to provide financial rewards offered to persons providing information leading to the arrest and conviction of persons found to be in violation of section 2. The department may use the fund for necessary and reasonable administrative and personnel costs related to the specific purposes of the fund. The department shall not use the fund for existing personnel or overhead costs. The commissioner of the department of environmental protection shall establish rules and regulations relating to the fund.

(b) The fund shall consist of all revenues received by the commonwealth under section 3. There shall be credited to the fund any revenue from appropriations or other monies authorized by the general court and specifically designated to be credited to the fund, any appropriation or grant explicitly made to the fund and from public and private sources as gifts, grants and donations to further enhance elephant and rhino conservation and enforcement of this Chapter.

(c) The state treasurer shall deposit amounts in the fund in accordance with section 34 of chapter 29 in a manner that will secure the highest interest rate available consistent with the safety of the fund and with the requirement that all amounts on deposit shall be available for immediate withdrawal at any time. The fund may be expended by the commissioner environmental protection without further appropriation for the purposes stated in this section and any funds remaining at the end of any fiscal year shall not revert to the General Fund and shall be available for use in subsequent fiscal years. Funds deposited and expended from the Endangered Elephant and Rhino Conservation and Education Fund shall not be assessed any indirect costs.