ASSEMBLY, No. 1145

STATE OF NEW JERSEY

216th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2014 SESSION

 


 

Sponsored by:

Assemblyman  JACK M. CIATTARELLI

District 16 (Hunterdon, Mercer, Middlesex and Somerset)

 

Co-Sponsored by:

Assemblywoman Jasey and Assemblyman Benson

 

 

 

 

SYNOPSIS

     Prohibits possession and sale of shark fins.

 

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel

  


An Act concerning shark fins, and supplementing Title 23 of the Revised Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    The Legislature finds and declares that sharks are apex predators in the marine food chain, and play an important role in the ocean’s ecosystem; that the characteristics of sharks make them more vulnerable to overfishing than most fish, and that state, federal, and international agency data shows a decline in shark populations both at the local level and worldwide; that, unlike other fish species, most sharks do not reach sexual maturity until seven to 12 years of age, and then only give birth to a small litter of young, making it difficult to quickly rebuild their populations once they are overfished; that the practice of shark finning – where a shark is caught, the fins cut off, and the shark returned to the water – causes tens of millions of sharks to die a slow and painful death each year; that a shark immobilized by finning practices will slowly starve to death, due to its inability to swim and seek out or capture prey, or will drown, due to its inability to obtain oxygen through the movement of water over its gills, or will be eaten alive by other fish; that shark fins are the principle ingredient in shark fin soup – a delicacy in some cultures – and the demand for this delicacy has skyrocketed in recent years; that commercial fishermen, despite the enactment of federal, and several state, prohibitions on the practice of shark finning, continue to engage in shark finning on a massive scale; that, since 1972 – for various reasons, including finning – the number of blacktip sharks has fallen by ninety-three percent, tiger sharks by ninety-seven percent, and bull sharks, dusky sharks, and smooth hammerheads by ninety-nine percent – a rapid and significant reduction in the shark population that is disrupting the ocean’s equilibrium; and that by eliminating the commercial market for shark fins in New Jersey, the State can help ensure that sharks will not become extinct.

     The Legislature therefore declares that it is reasonable and necessary, and in the best interests of the State’s and the world’s marine environment, to curtail the cruel and inhumane practice of shark finning, and to thereby prevent the ultimate extinction of the shark population, by prohibiting the possession, sale, trade, or distribution of shark fins in the State.

 

     2.    (New section)  a.  No person shall: 

     (1)   sell, trade, or distribute, or offer or expose for sale, trade, or distribution, any shark fin; or

     (2)   possess any shark fin that has been separated from a shark prior to its lawful landing. 

     A person may separate a shark fin from a lawfully-landed shark during the ordinary course of preparing the shark’s body, or body parts other than the fins, for consumption, sale, trade, or distribution, except that any shark fins so separated from a landed shark shall be immediately disposed of through destruction, in accordance with rules and regulations adopted by the department pursuant to subsection j. of this section.

     b.    Whenever, on the basis of available information, the commissioner finds that a person is in violation of the provisions of subsection a. of this section, or of any rule or regulation adopted pursuant thereto, the commissioner: (1) shall levy a civil administrative penalty in accordance with subsection c. of this section; and (2) upon a person’s third or subsequent violation of the provisions of subsection a. of this section, may petition the Attorney General to bring a criminal action in accordance with subsection d. of this section.

     c.    The commissioner is authorized to assess a civil administrative penalty of not less than $5,000 or more than $15,000 for a first offense under this section, not less than $15,000 or more than $35,000 for a second offense, and not less than $35,000 or more than $50,000 for a third or subsequent offense.  Each day during which a violation continues shall constitute an additional, separate, and distinct offense.  Any amount assessed under this subsection shall fall within a range established by rule or regulation by the commissioner for violations of similar type, seriousness, duration and conduct, and shall be based, in part, on the number or weight of shark fins that are the subject of the violation; provided, however, that prior to the adoption of the rule or regulation, the commissioner may, on a case-by-case basis, assess a civil administrative penalty up to the maximum identified in this subsection, utilizing the criteria set forth herein.  In addition to any civil administrative penalty assessed under this subsection, and notwithstanding the maximum penalties set forth herein, the commissioner may assess any economic benefits from the violation gained by the violator. 

     Prior to the assessment of a penalty under this subsection, the person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed.  The notice shall identify the section of the statute or regulation violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil penalties to be assessed; and affirm the rights of the alleged violator to a hearing.  The ordered party shall have 35 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing.  After the hearing, and upon finding that a violation has occurred, the commissioner may issue a final order assessing the amount of the fine specified in the notice.  If no hearing is requested, the notice shall become a final order after the expiration of the 35-day period.  Payment of the assessment is due when a final order is issued or the notice becomes a final order.  The payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. 

     The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate.  A civil administrative penalty assessed, including any portion thereof required to be paid pursuant to a payment schedule approved by the department, which is not paid within 90 days of the date that the payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof that remains unpaid, which interest shall accrue as of the date payment is due.  If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until 90 days after the date on which a final order is issued.  Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court.

     d.    Any person who has been assessed a civil administrative penalty, on two or more occasions, pursuant to subsection c. of this section shall be guilty, upon conviction for a subsequent violation of subsection a. of this section, of a crime of the fourth degree.  Notwithstanding the provisions of paragraph (4) of subsection a. of N.J.S.2C:43-6 to the contrary, a person convicted under this subsection shall be subject to a term of imprisonment of not more than one year.

     e.    In addition to the penalties imposed under subsections c. and d. of this section, a person who violates the provisions of subsection a. of this section shall be liable to the department for the payment of administrative fees and costs and court costs expended in prosecuting the violation, and for the payment of reasonable attorneys’ fees. 

     f.     Whenever a person violates the provisions of subsection a. of this section, the department may suspend or revoke the license to fish, which has been issued to that person in accordance with R.S.23:3-1 et seq.

     g.    (1)  Any shark fins possessed, sold, traded, or distributed in violation of the provisions of subsection a. of this section, or of any rule or regulation adopted pursuant thereto, and any vessels, vehicles, equipment, or other property utilized in the commission of a second or subsequent violation of subsection a. of this section, or of any rule or regulation adopted pursuant thereto, may be confiscated, and shall be subject to forfeiture by summary proceeding, instituted by the Commissioner of Environmental Protection in a court of competent jurisdiction. 

     (2)   Upon viewing a violation of subsection a. of this section, the department, a conservation officer, or any other law enforcement officer may seize and secure, in accordance with the provisions of paragraph (1) of this subsection, any shark fins, vessels, vehicles, equipment, or other property involved in the violation, and the commissioner shall immediately thereafter give notice of the seizure to the court. 

     (3)   In addition to the confiscation procedure identified in paragraph (2) of this subsection, a court may, upon the filing of a verified complaint, issue a warrant directing a conservation officer, or any other law enforcement officer, to:  (a) seize, and take into possession, shark fins, vessels, vehicles, equipment, or other property described in the complaint; (b) bring any seized items before the court that issued the warrant; and (c) summon the person named in the warrant, and any other person who may be found in possession of the described items, to appear at the time and place therein specified.

     (4)   If, after a hearing, the court determines that any shark fin seized pursuant to this subsection was possessed, sold, traded, or distributed in violation of the provisions of subsection a. of this section, the shark fin shall be forfeited and, notwithstanding any other law, rule, or regulation to the contrary, shall be disposed of through destruction. 

     If, after a hearing, the court determines that any other items seized pursuant to this subsection were utilized in the commission of a violation of subsection a. of this section, the items shall be forfeited and disposed of through destruction, donation, or sale, as the court may direct, but no such item shall be sold contrary to the provisions of any law, or any rule or regulation adopted pursuant thereto.  The proceeds of any sale conducted pursuant to this paragraph, less legal costs and charges, shall be paid into the “Endangered and Nongame Species of Wildlife Conservation Fund,” established pursuant to section 1 of P.L.1981, c.170 (C.54A:9-25.2), to be used for the same purposes as other monies in that fund.

     h.    The provisions of subsection a. of this section shall not apply to any shark fin possessed, sold, traded, or distributed for scientific research or educational purposes.

     i.     As used in this section, “shark fin” means a raw or dried fin or tail that has been separated from the body of any species of shark.

     j.     The department shall adopt, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), any rules and regulations necessary to implement the provisions of this act.

 

     3.    This act shall take effect immediately.


STATEMENT

 

     This bill would prohibit the sale, trade, or distribution, or the offering for sale, trade, or distribution of any shark fin, and the possession of any shark fin that has been separated from a shark prior to its lawful landing.  The bill would authorize the removal of shark fins from the body of a shark only if the shark has been lawfully-landed and the fins are removed during the ordinary course of preparing the shark’s body, or body parts other than the fins, for consumption, sale, trade, or distribution.  Moreover, the bill would require any shark fins so separated from a landed shark to be immediately disposed of through destruction.

     Shark fins are used as the primary ingredient in shark fin soup – a delicacy in some cultures – and the demand for this delicacy has skyrocketed in recent years.  The practice of shark finning, however – where a shark is caught, the fins cut off, and the shark returned to the water – is a cruel and inhumane practice that fully immobilizes sharks and causes them to suffer a slow and painful death by suffocation, starvation, or live consumption by other fish.  Tens of millions of sharks are killed each year as a result of finning practices, and since 1972 – for various reasons including finning – the number of blacktip sharks has fallen by ninety-three percent, tiger sharks by ninety-seven percent, and bull sharks, dusky sharks, and smooth hammerheads by ninety-nine percent.  This rapid and significant reduction in the shark population is disrupting the ocean’s equilibrium, and, despite the enactment of federal, and several state, prohibitions on the practice of shark finning, commercial fishermen continue to engage in shark finning on a massive scale.  This bill would attempt to curtail shark finning enterprises, and thereby protect against extinction of the shark population, by eliminating the commercial market for shark fins in the State.

     Any person who violates the bill’s prohibitions against the possession, sale, trade, or distribution of shark fins would be subject: (1) for a first offense, to a civil administrative penalty of not less than $5,000 or more than $15,000; (2) for a second offense, to a civil administrative penalty of not less than $15,000 or more than $35,000; and (3) for a third or subsequent offense, to a civil administrative penalty of not less than $35,000 or more than $50,000, or imprisonment of not more than one year, or both.  Any shark fins possessed in violation of the bill’s provisions, and any vessels, vehicles, equipment, or other property utilized in the commission of a second or subsequent violation of the bill’s provisions, would be subject to immediate seizure and ultimate forfeiture by summary proceeding.  Any forfeited shark fins would be disposed of through destruction.

     The bill’s prohibitions would not apply to shark fins possessed, sold, traded, or distributed for scientific research or educational purposes.