SENATE DOCKET, NO. 457        FILED ON: 1/17/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 450

The Commonwealth of Massachusetts

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PRESENTED BY:

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 relative to ivory and rhino horn trafficking.

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PETITION OF:

SENATE DOCKET, NO. 457        FILED ON: 1/17/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 450

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 440 OF 2015-2016.]

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act relative to ivory and rhino horn trafficking.

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

SECTION 1. The General Laws, as appearing in the 2016 Official Edition, 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 any species of elephant, mammoth, or mastodon, or any piece thereof, and includes any item or product containing ivory.

(c) "Rhinoceros horn" means the horn, or a piece thereof, or derivative such as powder, of any species of rhinoceros, and includes any item or product containing rhinoceros horn.

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

(h) “Bona fide educational or scientific institution” means an institution that establishes through documentation educational or scientific tax exemption, from the federal Internal Revenue Service or the institution’s national or state tax authority.

(i) “Sale” or “sell” means selling, trading, bartering for monetary or nonmonetary consideration, and includes any transfer of ownership that occurs in the course of a commercial transaction.

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

(b) It shall be prima facia evidence of possession with intent to sell when ivory or rhinoceros horn 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) The prohibitions set forth in subsection (a) shall not apply to any of the following:

(1) An employee or agent of the federal or state government undertaking a law enforcement activity pursuant to federal or state law, or a mandatory duty required by federal law.

(2) An activity that is authorized by an exemption or permit under federal law or that is otherwise expressly authorized under federal law.

(3) Ivory or rhinoceros horn that is a fixed component of a musical instrument, including, but not limited to, a string or wind instrument or piano, provided that the ivory or rhinoceros horn was legally acquired, and provided that the total weight of the ivory or rhinoceros horn is less than 200 grams.

(4) Ivory or rhinoceros horn that a fixed component of an antique that is not made wholly or primarily of the ivory or rhinoceros horn, provided that the antique status is established by the owner or seller of the antique with documentation demonstrating provenance and showing the antique to be not less than 100 years old, and provided that the total weight of the ivory or rhinoceros horn is less than 200 grams.

(5) The purchase, sale, offer for sale, or possession with intent to sell, ivory or rhinoceros horn for educational or scientific purposes by a bona fide educational or scientific institution if both of the following criteria are satisfied:

(A) The purchase, sale, offer for sale, possession with intent to sell, or import with intent to sell the ivory or rhinoceros horn is not prohibited by federal law.

(B) The ivory or rhinoceros horn was legally acquired before January 1, 1991, and was not subsequently transferred from one person to another for financial gain or profit after July 1, 2017.

(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.

(g) The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

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 may be fined not more 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; and may be imprisoned up to 6 months in a house of correction.

(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 18 months in a house of correction.

(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 two and a half years in a house of correction and fined no less than an amount equal to $40,000 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.

(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 fish and game 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. (a) There shall be established and set up on the books of the commonwealth a separate fund, to be known as the Elephant Ivory and Rhino Horn Trafficking Enforcement Fund. The fund shall be used by the office of law enforcement within the executive office of energy and environmental affairs in consultation with the environmental crimes strike force, to increase or expand enforcement and educational efforts related to the provisions of this chapter, 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 office of law enforcement may use the fund for necessary and reasonable administrative and personnel costs related to the specific purposes of the fund. The office of law enforcement shall not use the fund for existing personnel or overhead costs. The secretary of the executive office of energy and environmental affairs in consultation with the director of the office of law enforcement and the environmental crimes strike force 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 ivory and rhino horn trafficking 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 director of the office of law enforcement 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 Elephant Ivory and Rhino Horn Trafficking Enforcement Fund shall not be assessed any indirect costs.

SECTION 5. This act shall take effect 6 months from the date of passage.