Raised Bill No. 5578
February Session, 2016
LCO No. 1752
Referred to Committee on ENVIRONMENT
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, 2016) (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 a musical instrument or 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 demonstrating provenance that verifies:
(i) If the item is a musical instrument that contains elephant ivory, that such instrument was manufactured prior to January 1, 1976; or
(ii) If the item is an antique, that it is not less than one hundred years old; or
(4) The noncommercial transfer of ownership of ivory or rhinoceros horn to a legal beneficiary of an estate, trust or other inheritance.
(d) The Department of Energy and Environmental Protection may permit, under terms and conditions as the department may prescribe, the purchase, sale, offer for sale, or possession with intent to sell of an ivory or rhinoceros horn article to a bona fide educational or scientific institution or a museum if each of the following criteria is satisfied:
(1) The purchase, sale, offer for sale, or possession with intent to sell is not prohibited by federal law; and
(2) The ivory or rhinoceros horn was legally acquired before January 1, 1991, and was not subsequently and will not be transferred from one person to another for financial gain or profit.
(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) In addition to the provisions of subsection (f) of this section, an administrative penalty of not more than twenty thousand dollars may be imposed for a violation of any provision of this section, or any rule, regulation or order adopted pursuant to this section. Civil penalties authorized pursuant to this subsection may be imposed administratively by the Department of Energy and Environmental Protection in accordance with the following provisions:
(1) The Commissioner of Energy and Environmental Protection shall issue a complaint to any person upon whom an administrative penalty may be imposed pursuant to this section. Such complaint shall allege the act that constitutes a violation of this section, relevant facts and the proposed amount of such penalty.
(2) Such complaint shall be served by personal notice or certified mail and inform the party who is served that the party may request a hearing not later than twenty days from the date of service. If a hearing is requested, such hearing shall be scheduled before the commissioner or his or her designee. Any such request for a hearing shall contain a brief statement of the material facts the party claims support his or her contention that an administrative penalty should not be imposed or that an administrative penalty of a lesser amount is warranted. Any party served with a complaint pursuant to this subsection shall be deemed to have waived the right to a hearing if a request for a hearing is not received by the commissioner not later than twenty days after the date of service of the complaint. If a hearing is not requested or if such right is deemed to be waived, any order imposing an administrative penalty pursuant to this subsection shall be final.
(3) The commissioner or his or her designee shall control the nature and order of the hearing proceedings. Hearings shall be informal in nature and need not be conducted in accordance with the rules of evidence. The commissioner or his or her designee shall issue a final order not later than forty-five days after the close of such hearing. A final copy of the order shall be served by certified mail upon the party served with the complaint.
(4) (A) Any party may obtain review of a final order by filing an appeal to the Superior Court not later than thirty days after the date of service of such final order.
(B) Any administrative penalty shall be due and payable to the department not later than sixty days after the time to seek appeal to the Superior Court has expired or, when the party has not requested a hearing on such complaint, not later than twenty days after the order imposing such administrative penalty becomes final.
(h) Administrative penalties collected pursuant to this section shall be used for law enforcement purposes.
(i) For any administrative penalty that is imposed by, the Department of Energy and Environmental Protection, the department may pay not more than one-half of such administrative penalty or five hundred dollars, whichever is less, to any person who provides information that led to the imposition of such administrative penalty. Such payment shall not be authorized if the person who provides such information is a law enforcement officer or an officer or agent of the Department of Energy and Environmental Protection.
(j) 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.
(k) The Commissioner of Energy and Environmental Protection 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, 2016
Statement of Purpose:
To prohibit the sale and trade of ivory and rhinoceros horn in the state.
[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]