Senate Bill S7194

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7194

                            I N  S E N A T E

                               May 5, 2014
                               ___________

Introduced  by  Sen.  LANZA  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Environmental Conservation

AN ACT to amend the  environmental  conservation  law,  in  relation  to
  prohibiting the purchase and sale of ivory articles and increasing the
  penalties  for  the  illegal  commercialization of wildlife, including
  ivory articles

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The environmental conservation law is amended by adding a
new section 11-0535-a to read as follows:
S 11-0535-A. ILLEGAL IVORY ARTICLES.
  1. AS USED IN THIS SECTION:
  A. "DISTRIBUTE" MEANS A TRANSFER  OR  CHANGE  IN  POSSESSION  WITH  AN
ACCOMPANYING CHANGE IN LEGAL OWNERSHIP.
  B. "IVORY ARTICLE" MEANS ANY ITEM CONTAINING:
  (I) WORKED OR RAW IVORY FROM ANY SPECIES OF ELEPHANT OR MAMMOTH; OR
  (II)  ANY  ANIMAL  PART  CONTAINING IVORY INCLUDED BY THE COMMISSIONER
PURSUANT TO SUBDIVISION FOUR OF THIS SECTION.
  C. "RAW IVORY" MEANS ANY ELEPHANT  OR  MAMMOTH  TUSK,  AND  ANY  PIECE
THEREOF,  THE SURFACE OF WHICH, POLISHED, OR UNPOLISHED, IS UNALTERED OR
MINIMALLY CARVED.
  D. "WORKED IVORY" MEANS ANY ELEPHANT OR MAMMOTH TUSK,  AND  ANY  PIECE
THEREOF, WHICH IS NOT RAW IVORY.
  2.  EXCEPT  AS OTHERWISE PROVIDED IN SUBDIVISION THREE OF THIS SECTION
AND NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION TWO OF SECTION 11-0535
OF THIS TITLE, WHICH AUTHORIZES THE DEPARTMENT TO ISSUE CERTAIN LICENSES
OR PERMITS, NO PERSON SHALL  SELL,  OFFER  FOR  SALE,  PURCHASE,  TRADE,
BARTER OR DISTRIBUTE AN IVORY ARTICLE.
  3.  UNLESS  SUCH  ACTIVITY IS PROHIBITED BY FEDERAL LAW, RULE OR REGU-
LATION, THE COMMISSIONER MAY AUTHORIZE, UNDER SUCH ADDITIONAL TERMS  AND
CONDITIONS  AS  HE  OR  SHE  MAY PRESCRIBE, THE SALE, OFFERING FOR SALE,
PURCHASE, TRADING, BARTERING OR DISTRIBUTION OF IVORY ARTICLES, PROVIDED
THAT:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14095-04-4
              

S. 7194                             2

  A. THE IVORY ARTICLE IS PART OF A BONA FIDE ANTIQUE AND IS  LESS  THAN
FIVE  PERCENT  BY VOLUME OF SUCH ANTIQUE, AND THE ANTIQUE STATUS OF SUCH
ANTIQUE IS ESTABLISHED BY THE OWNER OR SELLER  THEREOF  WITH  HISTORICAL
DOCUMENTATION  EVIDENCING  PROVENANCE  AND SHOWING THE ANTIQUE TO BE NOT
LESS THEN ONE HUNDRED YEARS OLD;
  B.  THE  DISTRIBUTION  OR CHANGE OF POSSESSION OF THE IVORY ARTICLE IS
FOR EDUCATIONAL OR SCIENTIFIC PURPOSES; OR
  C. THE DISTRIBUTION OF THE IVORY ARTICLE IS TO A LEGAL BENEFICIARY  OF
A TRUST OR TO AN HEIR OR DISTRIBUTEE OF AN ESTATE.
  4.    THE  COMMISSIONER MAY PROMULGATE RULES AND REGULATIONS EXPANDING
THE DEFINITION OF "IVORY ARTICLE" TO  INCLUDE  ANY  OTHER  ANIMAL  PARTS
CONTAINING IVORY PROVIDED THAT SUCH PARTS ARE FROM ANIMALS CLASSIFIED AS
ENDANGERED  OR  THREATENED,  AND PROVIDED, FURTHER THAT THE COMMISSIONER
HAS HELD AT LEAST ONE PUBLIC HEARING PRIOR TO THE ADOPTION OF SUCH RULES
AND REGULATIONS.
  S 2. Section 71-0924 of the environmental conservation law,  as  added
by  chapter  69 of the laws of 1988, subdivision 4 as amended by chapter
417 of the laws of 1996, is amended to read as follows:
S 71-0924. Illegal commercialization of  fish,  shellfish,  crustaceans,
             and wildlife.
  Notwithstanding  any other provision of this chapter, when a violation
involves the sale, trade or  barter  of  fish,  shellfish,  crustaceans,
wildlife,  or  parts  thereof,  the  sale,  trade  or barter of which is
prohibited by the fish and wildlife law, the following additional penal-
ties shall be imposed:
  1. where the value of fish, shellfish, crustaceans, wildlife, or parts
thereof, is two hundred fifty dollars or less, the offense  shall  be  a
violation  punishable  by a fine of five hundred dollars and/or not more
than fifteen days of imprisonment;
  2. where the value of fish, shellfish, crustaceans, wildlife, or parts
thereof, is  more than two hundred fifty dollars but does not exceed one
thousand five hundred  dollars,  the  offense  shall  be  a  misdemeanor
punishable  by  a fine of five thousand dollars and/or not more than one
year of imprisonment; [and]
  3. where the value of fish, shellfish, crustaceans, wildlife, or parts
thereof, exceeds one thousand five hundred dollars,  the  offense  shall
constitute a class E felony under the provisions of the penal law[.];
  4. WHERE THE VALUE OF FISH, SHELLFISH, CRUSTACEANS, WILDLIFE, OR PARTS
THEREOF, EXCEEDS TWENTY-FIVE THOUSAND DOLLARS, THE OFFENSE SHALL CONSTI-
TUTE A CLASS D FELONY UNDER THE PROVISIONS OF THE PENAL LAW; OR
  5. WHERE THE VALUE OF FISH, SHELLFISH, CRUSTACEANS, WILDLIFE, OR PARTS
THEREOF,  EXCEEDS  TWO HUNDRED FIFTY THOUSAND DOLLARS, THE OFFENSE SHALL
CONSTITUTE A CLASS C FELONY UNDER THE PROVISIONS OF THE PENAL LAW.
  For the purposes of this section the value of fish, shellfish, crusta-
ceans and wildlife shall be the fair market value  of  or  actual  price
paid  for  such  resource,  whichever is greater.   For purposes of this
section, "sale" shall include the acts of selling, trading or  bartering
and  all  related  acts,  such as the act of offering for sale, trade or
barter, and shall also include the illegal possession of  fish,  shellf-
ish,  wildlife or crustacea with intent to sell. It shall be presumptive
evidence of possession with intent to sell when  such  fish,  shellfish,
wildlife or crustacea is possessed in quantities exceeding the allowable
recreational quantities, or is possessed in a retail or wholesale outlet
commonly  used  for the buying or selling of such fish, shellfish, wild-
life or crustacea, provided, however, that nothing in  this  subdivision

S. 7194                             3

shall  preclude the admission of other evidence which may serve to inde-
pendently prove a defendant's intent to sell.
  S  3. Subdivision 13 of section 71-0925 of the environmental conserva-
tion law, as amended by chapter 706 of the laws of 2005, is amended  and
a new subdivision 16 is added to read as follows:
  13.  If  the  violation  was  an  act prohibited by subdivision two of
section 11-0535, 11-0535-A or by section 11-0536 of this chapter, or  by
any  lawful  rule  or  regulation of the department promulgated pursuant
thereto, not more than two thousand dollars, and an  additional  penalty
of  not  more than three hundred fifty dollars for each fish, shellfish,
crustacea, wildlife or part thereof involved in the  violation.  If  the
violation  was  an  act  prohibited  by any regulation of the department
promulgated pursuant to subdivision three of  section  11-0535  of  this
chapter,  then such penalty shall be not more than one thousand dollars,
and an additional penalty of not more than two hundred dollars for  each
fish,  shellfish,  crustacea,  wildlife  or part thereof involved in the
violation.
  16. IF THE VIOLATION WAS A SECOND OR SUBSEQUENT VIOLATION  OF  SECTION
11-0535, 11-0535-A OR 11-0536 OF THIS CHAPTER, THE GREATER OF (A) A FINE
OF  FOUR  THOUSAND  DOLLARS  PER  ARTICLE  FOR EACH VIOLATION, OR (B) AN
AMOUNT EQUAL TO THREE TIMES THE VALUE OF THE ARTICLE INVOLVED.
  S 4. Within 30 days of the effective date of this act, the  department
shall  maintain  on its website information regarding the prohibition on
the sale and purchase of ivory articles in the state.
  S 5. Severability. If any clause, sentence, paragraph, section or part
of this act shall be adjudged by any court of competent jurisdiction  to
be  invalid  and  after  exhaustion  of all further judicial review, the
judgment shall not affect, impair or invalidate the  remainder  thereof,
but  shall  be  confined in its operation to the clause, sentence, para-
graph, section or part of this act directly involved in the  controversy
in which the judgment shall have been rendered.
  S  6.  No  later  than January 1, 2020, the department shall prepare a
report outlining enforcement activities  and  recommendations  regarding
any  necessary  changes,  including  but not limited to the extension or
repeal of this act.
  S 7. This act shall take effect immediately;  provided,  however,  any
person  who  has  been  issued  a license or permit allowing the sale of
elephant ivory articles prior to the effective date of this act may sell
such articles listed on such license or permit  until  such  license  or
permit has expired.