SECTION 1. The legislature finds that African elephants are threatened and Asian elephants are endangered due to ivory trafficking at unprecedented levels, which has been driven by an increase in consumer demand. According to the United States Department of the Interior, illegal ivory trade activity, including that involving newly-harvested ivory, has more than doubled since 2007. More than 35,000 African elephants and numerous Asian elephants were slaughtered in 2012 and it is estimated that over forty-one tons of illegal ivory was confiscated worldwide in 2013. Scientists believe that elephants cannot withstand this rate of slaughter and they may become extinct in less than twenty years. Additionally, persistent trade in elephant ivory threatens other species with ivory teeth and tusks and the rhinoceroses, which is targeted for its prized horn. The piecemeal protection of one species may redirect and accelerate slaughter and trade of other species.

The legislature further finds that federal and international measures have sought to protect elephants, other ivory toothed and tusked animals, and the rhinoceros. These include the federal Endangered Species Act of 1973, African Elephant Conservation Act, Marine Mammal Protection Act, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora, or CITES, which the United States adopted.

The legislature finds that ivory without proper documentation and of unknown origin and age continues to be brought into and sold throughout Hawaii. In 2013, the legislature adopted Senate Concurrent Resolution No. 149, S.D. 1, urging Hawaii residents and businesses to comply with CITES and not to buy or sell ivory of unknown origin. However, as a resolution, this measure does not include any enforcement mechanisms. More explicit action is needed.

The legislature finds that the protection of animals with ivory teeth and tusks and the rhinoceros is an important public policy. Therefore, the purpose of this bill is to establish a registry of ivory and rhinoceros horn items within the department of land and natural resources. Registered items may be sold, offered for sale, purchased, caused to be purchased, or possessed with the intent to sell. Personal possession and transfer by bequest of ivory and rhinoceros horn will not be affected by the registry.

SECTION 2. Chapter 195D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§195D- Registry of ivory and rhinoceros horn. (a) The department shall establish a registry of ivory and rhinoceros horn. Any person selling any ivory and rhinoceros horn items shall first notify the department of the ivory and rhinoceros horn item by providing information about the species and age of each item. When notification to the department to register an item is submitted more than three months after the registry becomes effective, the person shall provide, in addition to information about the species and age, documentation demonstrating that the specific item satisfies, as applicable to the species, the requirements of the federal Endangered Species Act of 1973, African Elephant Conservation Act, Marine Mammal Protection Act, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora, and any regulations or guidance promulgated thereunder, for the intrastate sale and purchase; provided that documentation establishing that the article is a mammoth species shall be required for mammoth ivory.

(b) Any person who sells or purchases, or causes to be purchased, any ivory and rhinoceros horn shall possess a receipt issued by the department indicating that the specific ivory or rhinoceros horn was registered. The receipt and any related documentation shall be transferred upon the sale or purchase of the ivory or rhinoceros horn. The absence of a department-issued receipt for the specific ivory or rhinoceros horn shall give rise to a rebuttable presumption that the sale and the purchase of the item is or was unlawful.

(c) If the registered ivory or rhinoceros horn is divided into two or more pieces, then each piece shall be registered with the department prior to be being sold. A copy of the receipt for the initial registration shall accompany any later-issued receipts for divided pieces.

(d) This section shall not apply to:

(1) Guns, knives, and musical instruments with a composition of ivory or rhinoceros horn that is less than twenty per cent by volume;

(2) Ivory or rhinoceros horn jewelry that can be identified as Ming's jewelry; provided that such jewelry must contain a legible marking identifying it as Ming's jewelry;

(3) Personal use and possession of ivory or rhinoceros horn;

(4) Bequests of ivory or rhinoceros horn; and

(5) Employees or agents of the federal or state government undertaking any law enforcement activities pursuant to federal or state law or any mandatory duties required by federal or state law.

(e) Possession of any ivory or rhinoceros horn in a retail or wholesale outlet, including an auction or swap meet, shall be presumptive evidence of possession with intent to sell. This presumption shall not preclude a finding of possession with intent to sell based upon any other evidence that may serve to establish that intent. The act of obtaining an appraisal of ivory or rhinoceros horn shall not, by itself, constitute possession with intent to sell.

(f) A person convicted of violating this section shall be sentenced as follows for each offense:

(1) For the first offense, the person shall be guilty of a misdemeanor and shall be fined the greater of $1,000 or two times the total value of the ivory or rhinoceros horn involved in the offense, sentenced to a term of imprisonment, or both; and

(2) For any second or subsequent offense, the person shall be guilty of a class C felony and shall be fined the greater of $5,000 or two times the total value of the ivory or rhinoceros horn involved in the offense, sentenced to a term of imprisonment, or both.

The penalties provided in this section are in addition to any other penalties imposed under other law.

(g) Any officer or agent authorized pursuant to title 12 shall have the authority to conduct searches as provided by law and to seize any ivory or rhinoceros horn and any related equipment or business records found in violation of this chapter or other applicable law. Any of the foregoing items so seized shall be held by the department pending disposition of court proceedings. Upon conviction of the person or persons from whom the seizure was made, the court shall declare the items seized forfeited to the State. Such items shall be destroyed or offered to an entity permitted by law to possess the items for education or scientific activities.

(h) Nothing in this chapter shall be construed to prohibit or impair any civil or administrative action or penalty available in law or equity.

(i) For purposes of this section, unless the context otherwise requires:

"Ivory" means any tooth or tusk composed of ivory, or any piece thereof, whether raw or worked, from any species of elephant, hippopotamus, mammoth, narwhal, and walrus. "Ivory" includes any product containing or advertised as containing ivory.

"Person" has the same meaning as in section 711-1108.5.

"Rhinoceros horn" means the horn, any piece thereof, or any derivative of the horn, such as powder, of any species of rhinoceros. "Rhinoceros horn" includes any product containing or advertised as containing any rhinoceros horn.

"Sale" or "sell" means all acts of selling, offering for sale, possessing with intent to sell, trading, or bartering for monetary or nonmonetary consideration, or distributing in the consumer marketplace, including online and internet sales.

"Total value of the ivory or rhinoceros horn" means the greater of the fair market value or the actual price paid for the ivory or rhinoceros horn."

SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 5. New statutory material is underscored.

SECTION 6. This Act shall take effect on March 15, 2038.

HOUSE OF REPRESENTATIVES	H.B. NO.	837
TWENTY-EIGHTH LEGISLATURE, 2015		H.D. 2
STATE OF HAWAII