S2012

An Act concerning the sale, purchase, barter, or possession of ivory or rhinoceros horn 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 ivory trafficking is at the highest rate ever recorded, with an estimated confiscation of more than 41 tons of illegal ivory worldwide in 2013; that despite laws to protect elephants, more than 35,000 African elephants were slaughtered in 2012 and scientists expect the current levels of illegal trade in ivory will bring elephants to extinction within 20 years; that other species with ivory teeth and tusks – such as hippopotamuses, narwhals, walruses, and whales – are equally threatened and the protection of one species may inadvertently draw poachers’ efforts to another species; that precious artifacts from prehistoric mammoths are also not safe and need protection from illegal ivory traffickers; that currently the population of all species of rhinoceros living in the wild worldwide has dwindled to 29,000 and, in February 2014, a federal ban on commercial trade of rhinoceros horn and elephant ivory has focused the need to protect rhinoceros populations from poachers as well; and that the most effective way to discourage the illegal trafficking is to eliminate markets and profits for the traffickers.

The Legislature therefore determines that it is an important public purpose to protect all species of rhinoceros and all species of animals with ivory teeth and tusks by prohibiting the sale, purchase, barter, or possession with intent to sell, of any ivory, ivory product, rhinoceros horn, or rhinoceros horn product.

2. As used in this act:

“Ivory” means any tooth or tusk from an elephant, hippopotamus, mammoth, narwhal, walrus, or whale, or any piece thereof, whether raw ivory or worked ivory, or made into, or part of, an ivory product.

“Ivory product” means any item that contains, or that is wholly or partially made from, any ivory.

“Raw ivory” means any ivory the surface of which, polished or unpolished, is unaltered or minimally changed by carving.

“Rhinoceros horn” means the horn, or any piece thereof, of any species of rhinoceros.

“Rhinoceros horn product” means any item that contains, or is wholly or partially made from, any rhinoceros horn.

“Total value of the ivory, ivory products, rhinoceros horn, and rhinoceros horn products” means the fair market value of the ivory, ivory products, rhinoceros horn, and rhinoceros horn products, or the actual price paid for the ivory, ivory products, rhinoceros horn, and rhinoceros products whichever is greater.

“Worked ivory” means ivory that has been embellished, carved, marked, or otherwise altered so that it can no longer be considered raw ivory.

3. a. In addition to the prohibitions established pursuant to, and the penalties imposed for violations of, R.S.23:4-27, “The Endangered and Nongame Species Conservation Act,” P.L.1973, c.309 (C.23:2A-1 et seq.), and any other applicable law, it shall be unlawful for any person to sell, offer for sale, purchase, barter, or possess with intent to sell, any ivory, ivory product, rhinoceros horn, or rhinoceros horn product, except as provided pursuant to subsection b. or c. of this section. The act of obtaining an appraisal of ivory, an ivory product, rhinoceros horn, or a rhinoceros horn product, alone shall not constitute possession with intent to sell.

b. A person may convey ivory, an ivory product, rhinoceros horn, or a rhinoceros horn product to the legal beneficiary of the ivory, ivory product, rhinoceros horn, or rhinoceros horn product which is part of an estate or other items being conveyed to lawful beneficiaries upon the death of the owner of the ivory, ivory product, rhinoceros horn, or rhinoceros horn product in anticipation of that death.

c. A person complying with the rules and regulations adopted by the Department of Environmental Protection pursuant to section 5 of this act may sell, offer for sale, purchase, barter, or possess:

(1) Asian elephant ivory, or an Asian elephant ivory product made wholly or in part of Asian elephant ivory, that was legally obtained prior to 1975;

(2) African elephant ivory, or an African elephant ivory product made wholly or in part of African elephant ivory, that was legally obtained prior to 1990;

(3) ivory from, or an ivory product made wholly or in part of, hippopotamus, mammoth, narwhal, walrus, or whale ivory that was legally obtained prior to the effective date of this act; or

(4) rhinoceros horn or rhinoceros horn product that was legally obtained prior to the effective date of this act.

4. a. In addition to any applicable penalties which may be imposed pursuant to R.S.23:4-27, “The Endangered and Nongame Species Conservation Act,” P.L.1973, c.309 (C.23:2A-1 et seq.), or any other applicable law, a person violating any provision of section 3 of this act, or any rule or regulation adopted pursuant to section 5 of this act, shall be guilty of:

(1) for a first offense, a disorderly persons offense and, notwithstanding the provisions of N.J.S.2C:43-3, shall be fined not less than $1,000 or an amount equal to two times the total value of the ivory, ivory products, rhinoceros horn, and rhinoceros horn products involved in the offense, whichever is greater; and

(2) for a second or subsequent offense, a crime of the fourth degree and, notwithstanding the provisions of N.J.S.2C:43-3, shall be fined not less than $5,000 or an amount equal to two times the total value of the ivory, ivory products, rhinoceros horn, and rhinoceros horn products involved in the offense, whichever is greater.

b. Upon a conviction for violating the provisions of section 3 of this act, the court shall seize all ivory, ivory products, rhinoceros horn, and rhinoceros horn products involved in the violation, assess the value, and determine the penalty and sentencing for the violation pursuant to subsection a. of this section. After making this determination and issuing the sentence, the court shall remit the seized ivory, ivory products, rhinoceros horn, and rhinoceros horn products to the Department of Environmental Protection for proper disposition. The department, at its discretion, may destroy the ivory, ivory products, rhinoceros horn, and rhinoceros horn products or donate them to an educational or scientific institution or organization, including, but not necessarily limited to, a museum, university, or research group.

5. The Department of Environmental Protection shall adopt, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations necessary for the implementation of this act, including, but not limited to: procedures for registering ivory, ivory products, rhinoceros horn, or rhinoceros horn products; determining whether ivory, ivory products, rhinoceros horn, or rhinoceros horn products were obtained legally; documenting or otherwise substantiating whether acquisition or possession of certain ivory, ivory products, rhinoceros horn, or rhinoceros horn products is legal; and legally selling, purchasing, bartering, and possessing ivory, ivory products, rhinoceros horn, or rhinoceros horn products pursuant to this act.

6. This act shall take effect immediately.

STATEMENT

This bill prohibits any person from selling, offering for sale, purchasing, bartering, or possessing with intent to sell, any ivory, ivory product, rhinoceros horn, or rhinoceros horn product, with limited exceptions. The bill:

1) permits a person to convey ivory, ivory products, rhinoceros horn, or rhinoceros horn products to legal beneficiaries;

2) directs the Department of Environmental Protection to establish procedures for addressing ivory, ivory products, rhinoceros horn, or rhinoceros horn products that were obtained legally; and

3) specifies that the act of obtaining an appraisal of ivory, an ivory product, rhinoceros horn, or a rhinoceros horn product alone would not constitute possession with intent to sell.

The bill also establishes, in addition to any applicable penalties which may be imposed pursuant to R.S.23:4-27, “The Endangered and Nongame Species Conservation Act,” or any other applicable law, the following:

1) for a first offense, the person would be guilty of a disorderly persons offense and fined not less than $1,000 or an amount equal to two times the total value of the ivory, ivory products, rhinoceros horn, and rhinoceros horn products involved in the offense, whichever is greater; and

(2) for a second or subsequent offense, the person would be guilty of a crime of the fourth degree and fined not less than $5,000 or an amount equal to two times the total value of the ivory, ivory products, rhinoceros horn, and rhinoceros horn products involved in the offense, whichever is greater.