SENATE DOCKET, NO. 487        FILED ON: 2/1/2021

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 576

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 rhinoceros horn trafficking.

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PETITION OF:

SENATE DOCKET, NO. 487        FILED ON: 2/1/2021

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 576

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 496 OF 2019-2020.]

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act relative to ivory and rhinoceros 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 are hereby amended by inserting after chapter 131A the following chapter:-

CHAPTER 131B.

IVORY AND RHINOCEROS HORN TRAFFICKING

Section 1. (a) As used in this chapter, the following terms shall have the following meanings, unless the context requires otherwise:-

"Ivory", a tooth or tusk from any species of elephant, mammoth or mastodon, or a piece thereof, or an item or product containing a tooth or tusk from any of said species, or containing a piece thereof.

"Rhinoceros horn", the horn, or a piece thereof, or derivative such as powder, of any species of rhinoceros, or an item or product containing rhinoceros horn or a piece or derivative thereof.

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

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

“Sale” or “sell”, selling, trading, bartering or offering for sale, trade or barter for monetary or nonmonetary consideration, including, but not limited to any transfer of ownership that occurs in the course of a commercial transaction.

Section 2. (a) Notwithstanding any general or special law to the contrary and in addition to the prohibitions and penalties established under sections 1 to 7, inclusive, of chapter 131A, no person shall sell, 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 a person possesses ivory or rhinoceros horn in a retail or wholesale outlet; 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) Subsection (a) shall not apply to:

(i) 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;

(ii) an activity that is authorized by an exemption or permit under federal law or that is otherwise expressly authorized under federal law;

(iii) 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, however, that the ivory or rhinoceros horn was legally acquired; and provided further, that the total weight of the ivory or rhinoceros horn is less than 200 grams;

(iv) ivory or rhinoceros horn for which the seller can provide historical documentation that the item meets the federal criteria for exemption for antique articles under 16 U.S.C. 1539 (h), as further clarified by the United States Fish and Wildlife Service Director’s Order 210 Appendix 1;

(v) manufactured or handcrafted items that contain a de minimis amount of ivory, provided, that the seller can demonstrate compliance with all of the following criteria:

(1) the ivory was imported into the United States prior to January 18, 1990, or was imported into the United States under a Convention on International Trade in Endangered Species of Wild Fauna and Flora pre-Convention certificate with no limitation on its commercial use;

(2) the ivory is a fixed or integral component of a larger manufactured or handcrafted item and is not in its current form the primary source of the value of the item; provided, however, that the ivory does not account for more than 50 percent of the value of the item;

(3) the ivory is not raw;

(4) the manufactured or handcrafted item is not made wholly or primarily of ivory; provided, however, that the ivory does not account for more than 50 percent of the item volume;

(5) the total weight of the ivory component or components is less than 200 grams; and

(6) the item was manufactured or handcrafted before July 6, 2016;

(vi) the import, purchase, sale or possession with intent to sell ivory or rhinoceros horn to a bona fide educational or scientific institution for educational or scientific purposes; provided, however, that: (1) the import, purchase, sale  or possession with intent to sell the ivory or rhinoceros horn is not prohibited by federal law; and (2) 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, 2020;

(vii) the non-commercial transfer of ownership of ivory or rhinoceros horn that is part of an estate or other items being conveyed to a lawful beneficiary of an estate, trust or other inheritance upon the death of an owner; or

(viii) a person who donates ivory or rhinoceros horn to a bona fide educational or scientific institution for educational or scientific purposes.

Section 3. (a) Violations of this chapter shall be punished:

(i) for a first offense, by a fine of not more than $4,000 or 2 times the total value of the ivory and rhinoceros horn involved in the offense, whichever is greater, or imprisonment up to 6 months in a house of correction, or both;

(ii) for a second offense, by a fine of not less than $8,000 or 2 times the total value of the ivory and rhinoceros horn involved in the offense, whichever is greater, or by imprisonment for up to 18 months in a house of correction, or both; or

(iii) for a third or subsequent offense or for an offense where the total value of the ivory or rhinoceros horn involved in the offense is not less than $25,000, by imprisonment for up to two and a half years in a house of correction and a fine of not less than $40,000 or 2 times the total value of the ivory and rhinoceros horn involved in the offense, whichever is greater.

Fines assessed pursuant to this section shall be deposited in the Elephant Ivory and Rhino Horn Trafficking Enforcement Fund under section 4.

(b) Upon a conviction for violation of this chapter, the court shall order the seizure of all ivory and rhinoceros horn involved in the violation and shall transfer the products to the department of fish and game for proper disposition. The department, at its discretion, may destroy the ivory and rhinoceros horn or donate it to an educational or scientific institution or organization.

Section 4. (a) There shall be an Elephant Ivory and Rhinoceros Horn Trafficking Enforcement Fund. The director of law enforcement shall administer the fund to increase or expand enforcement and educational efforts related to the provisions of this chapter which may include financial rewards offered to a person providing information leading to the arrest and conviction of a person found to be in violation of this chapter. 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 personnel or overhead costs not related to the purposes of the fund. The fund shall not be assessed any indirect costs.

(b) There shall be credited to the fund: (i) all revenues received under section 3; (ii) revenue from appropriations or other money authorized by the general court and specifically designated to be credited to the fund; and (iii) funds from public or private sources including, but not limited to, gifts, grants, donations, rebates and settlements received by the commonwealth that are specifically designated to be credited to the fund.

The fund may be expended by the director of law enforcement without further appropriation and any funds remaining at the end of a fiscal year shall not revert to the General Fund and shall be available for use in subsequent fiscal years. The director shall report annually, not later than October 1, on the fund's activity to the senate and house chairs of the joint committee on environment, natural resources and agriculture and the house and senate committees on ways and means. The report shall include, but not be limited to, an accounting of: (i) revenue received by the fund; (ii) expenditures from the fund, including the recipient, date and reason for the expenditure; and (iii) the total fund balance.

SECTION 2. This act shall take effect 1 year from the date of passage.