February Session, 2016
House of Representatives, April 4, 2016
The Committee on Environment reported through REP. ALBIS of the 99th Dist., Chairperson of the Committee on the part of the House, that the substitute bill ought to pass.
AN ACT PROHIBITING THE SALE AND TRADE OF IVORY AND RHINOCEROS HORN.
Be it enacted by the Senate and House of Representatives in General Assembly convened:
Section 1. (NEW) (Effective July 1, 2017) (a) For the purposes of this section:
(1) "Bona fide educational or scientific institution" means an institution that establishes through documentation either of the following: (A) An educational or scientific tax exemption, from the federal Internal Revenue Service or such institution's national or state tax authority; or (B) accreditation as an educational or scientific institution, from a qualified national or state authority for the institution's location;
(2) "Ivory" means a tooth or tusk from a species of elephant, hippopotamus, mammoth, walrus, whale, or narwhal, or a piece thereof, including any product that contains or that is advertised as containing ivory;
(3) "Rhinoceros horn" means the horn or a piece or derivative thereof, such as powder, of a species of rhinoceros, including any product containing or advertised as containing rhinoceros horn;
(4) "Sale" or "sell" means selling, trading, bartering for monetary or nonmonetary consideration, or giving away in conjunction with a commercial transaction; and
(5) "Total value" means either the fair market value or the actual price paid for ivory or rhinoceros horn, whichever is greater.
(b) Except as provided in subsections (c) and (d) of this section, no person shall purchase, sell, offer for sale or possess with the intent to sell any ivory or rhinoceros horn.
(c) The prohibitions in subsection (b) of this section shall not apply to any of the following:
(1) Any 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) Any activity expressly authorized by federal law;
(3) Ivory that is part of an antique provided:
(A) Such ivory was removed from the wild prior to February 26, 1976, if such ivory is elephant ivory;
(B) Such ivory is a fixed component of a larger manufactured item and is not, in its current form, the primary source of the total value for such item;
(C) The total volume of the ivory component is less than twenty per cent;
(D) The manufactured item is not made wholly or primarily of ivory;
(E) The ivory is not raw, unaltered or minimally changed by carving; and
(F) The owner or seller provides historical documentation or a sworn affidavit executed by an expert demonstrating provenance that verifies that the antique is not less than one hundred years old;
(4) The noncommercial transfer of ownership of ivory or rhinoceros horn to a legal beneficiary of an estate, trust or other inheritance; or
(5) The purchase, sale, offer for sale, or possession with intent to sell of an ivory or rhinoceros horn article by a bona fide educational or scientific institution or a museum.
(d) The prohibitions in subsection (b) of this section shall not apply to ivory that is part of a musical instrument that was made prior to February 26, 1976.
(e) It shall be presumptive evidence of possession with intent to sell ivory or rhinoceros horn if the ivory or rhinoceros horn is possessed in a retail or wholesale outlet commonly used for the buying or selling of similar items. Such presumption shall not preclude a finding of intent to sell based on any other evidence that may serve to independently establish such intent.
(f) Any person who violates any provision of this section or any rule, regulation, or order adopted pursuant to this section shall be guilty of a ·class B misdemeanor provided: (1) For the first offense, such person shall be fined not less than three thousand dollars or an amount equal to two times the total value of the article involved, whichever is greater, or imprisoned for not more than six months, or both; and (2) for a second or any subsequent violation, such person shall be fined not less than six thousand dollars or an amount equal to three times the total value of the article involved, whichever is greater, or imprisoned not more than one year, or both.
(g) Upon conviction or other entry of judgment for a violation of this section, any seized ivory or rhinoceros horn shall be forfeited and, upon forfeiture, either be maintained by the Department of Energy and Environmental Protection for educational or training purposes, donated by the department to a bona fide educational or scientific institution or destroyed.
(h) The Commissioner of Energy and Environmental Protection, in consultation with the Attorney General, may adopt regulations, in accordance with chapter 54 of the general statutes, to implement the provisions of this section.
This act shall take effect as follows and shall amend the following sections:
July 1, 2017
Joint Favorable Subst.
The following Fiscal Impact Statement and Bill Analysis are prepared for the benefit of the members of the General Assembly, solely for purposes of information, summarization and explanation and do not represent the intent of the General Assembly or either chamber thereof for any purpose. In general, fiscal impacts are based upon a variety of informational sources, including the analyst's professional knowledge. Whenever applicable, agency data is consulted as part of the analysis, however final products do not necessarily reflect an assessment from any specific department.
OFA Fiscal Note
FY 17 $
FY 18 $
Resources of the General Fund
GF - Potential Revenue Gain
Correction, Dept.; Judicial Dept. (Probation)
GF - Potential Cost
Note: GF=General Fund
Municipal Impact: None
This bill bans purchasing, selling, or possessing ivory, ivory products, and/or rhinoceros horn.1
The bill creates new class B misdemeanors for violations of provisions of the bill. To the extent that offenders are prosecuted for new offenses under this bill, potential costs for incarceration or probation supervision in the community, or judicial revenue would result. On average, it costs the state $7,260 (including benefits) to supervise an inmate in the community as opposed to $61,320 (including benefits) to incarcerate an offender.
The bill also requires the Department of Energy and Environmental Protection (DEEP) to retain any seized ivory or rhinoceros horn for educational or training purposes, or requires DEEP to donate those pieces to certain institutions. This is not anticipated to result in a fiscal impact.2
The Out Years
The annualized ongoing fiscal impact identified above would continue into the future subject to the number of violations.
OLR Bill Analysis
AN ACT PROHIBITING THE SALE AND TRADE OF IVORY AND RHINOCEROS HORN.
This bill generally bans purchasing, selling, offering for sale, or possessing with the intent to sell ivory, rhinoceros horn, or products made from them. It includes trading, bartering, or giving away as part of a commercial transaction.
The bill exempts from the ban (1) law enforcement activity or activity allowed under federal law, (2) certain antiques or musical instruments containing ivory, (3) noncommercial transfers to legal beneficiaries, and (4) activity by a bona fide educational or scientific institution or museum.
The bill makes a violation a class B misdemeanor. It requires forfeiture of seized ivory or horn upon a conviction or other entry of judgment. Forfeited ivory or horn may be destroyed, used by the Department of Energy and Environmental Protection (DEEP) for educational or training purposes, or donated by DEEP to an educational or scientific institution.
The bill specifies that possessing ivory, horn, or an associated product in a retail or wholesale location commonly used to buy or sell similar items is presumptive evidence of possession with intent to sell. But the presumption does not preclude a finding of intent to sell based on other evidence that may independently establish it.
The bill allows the DEEP commissioner, in consultation with the attorney general, to adopt regulations implementing the ban. Existing law allows the commissioner to adopt regulations on the trade of raw elephant ivory or products made from ivory if he finds that it contributes to elephant endangerment or extinction (CGS § 26-315).
EFFECTIVE DATE: July 1, 2017
SCOPE OF BAN
The bill's ban applies to:
1. tooth or tusk, or any part of it, from an elephant, hippopotamus, mammoth, narwhal, walrus, or whale;
2. horn, or any part or derivative (e.g., powder) of it, from any rhinoceros species; and
3. any product that has, or is advertised to have, ivory or rhinoceros horn.
The bill exempts the following activities involving ivory, rhinoceros horn, or associated products:
1. activity expressly allowed by federal law;
2. state or federal law enforcement activity or a mandatory duty under federal law;
3. noncommercial ownership transfers to a legal beneficiary of an estate, trust, or other inheritance; and
4. actions by bona fide education or scientific institutions or museums.
The ban also does not apply to ivory that is part of (1) a musical instrument made before February 26, 1976 or (2) certain antiques. For ivory that is part of an antique, the exemption only applies if it:
1. was removed from the wild before February 26, 1976, if it is elephant ivory;
2. is a fixed component of a larger manufactured item and is not, in its current form, the main source of the item's value;
3. makes up less than 20% of the item;
4. is not raw, unaltered, or minimally changed by carving; and
5. is at least 100 years old, as shown by historical documentation from the owner or seller or a sworn affidavit executed by an expert to verify the age.
PENALTIES FOR VIOLATIONS
The bill makes violating the ban, or any rule, regulation, or order adopted under the bill's provisions, a class B misdemeanor, punishable by prison time, a fine, or both.
A first-time violator is subject to up to six months in prison and a fine of at least $3,000 or twice the total value of the ivory, horn, or product, whichever is greater.
Second or subsequent violations are punishable by up to one year in prison and a fine of at least $6,000 or three times the total value of the ivory, horn, or product, whichever is greater.
Under the bill, the total value is the greater of the (1) fair market value or (2) actual price paid.
Under the bill, any ivory or rhinoceros horn seized as a result of a ban violation must be forfeited on conviction or other entry of judgment. After forfeiture, the ivory or horn must be (1) maintained by DEEP for educational or training purposes, (2) donated by DEEP to a bona fide educational or scientific institution, or (3) destroyed.
The bill defines a “bona fide educational or scientific institution” as an institution with documentation to show that it (1) has a national or state educational or scientific tax exemption or (2) is accredited as an educational or scientific institution by a qualified national or state authority from the institution's location.
Related International and Federal Law
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international treaty under which governments agree to restrict international trade in certain plants and animals, including elephants and rhinoceri, and products derived from them.
CITES provides a framework for countries to follow when adopting legislation to implement the treaty. Trade in protected species must be licensed, with different levels of protection based on a species' endangered status. Currently, 181 countries, including the United States, are parties to the treaty.
The United States regulates trade in elephant ivory and rhinoceros horn through CITES and laws such as the Endangered Species Act (15 U.S.C. § 1531 et seq.). Specifically, trade of these species requires permits, at minimum. The U.S. Fish and Wildlife Service is engaged in efforts to amend its regulations to increase commercial trade restrictions on elephant ivory.
sSB 227, reported favorably by the Environment Committee, generally bans importing, possessing, selling or offering for sale, or transporting five animal species, including African elephants and certain rhinoceri. It exempts ivory.
Joint Favorable Substitute
1 Exemptions to the ban include certain antiques or musical instruments, transfers to beneficiaries, and activities by educational or scientific institutions or museums.
2 It is estimated four to eight cases may be prosecuted annually.