SECTION 1. The legislature finds that African elephants are nearing extinction due to the high price of ivory that is driven by an increase in consumer demand. Since 1978, the African elephant has been listed as threatened under the Endangered Species Act of 1973, title 16 U.S.C. section 1531 et seq., and trade in elephant ivory continues to jeopardize their existence.

In March 2013, one hundred seventy-eight nations attended the sixteenth meeting of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, where it was documented that elephant slaughter has reached crisis proportions. Wildlife scientists state that the black market trade of ivory through internet sales is skyrocketing throughout the world, including in the United States. In 2012, approximately thirty-five thousand African elephants were slaughtered by poachers, criminal syndicates, and terrorist groups who were intent on selling their ivory.

Ivory trafficking is at the highest recorded rate ever. It is estimated that over forty-one tons of illegal ivory have been confiscated worldwide this year. Scientists believe the population of elephants cannot withstand this slaughter and the species may become extinct in less than twenty years.

The legislature further finds that the Convention on International Trade in Endangered Species of Wild Fauna and Flora, adopted by the United States, banned the international trade of African elephant ivory in 1990. Under existing law, African elephant ivory may be sold legally in Hawaii if it was imported before 1990 or is at least one hundred years old at the time of import and has not been altered since. An investigation supported by The Humane Society of the United States and Humane Society International found that Hawaii is the third highest retailer of elephant ivory in the United States, behind California and New York. Despite federal laws, eighty-nine per cent of ivory sold in Hawaii is likely illegal or of unknown origin. Often, fraudulent documents are used to take advantage of existing law and falsely claim that the ivory predates 1990.

The legislature additionally finds that wildlife and animal welfare experts agree that the only way to save the critically endangered elephants is to prohibit the sale of ivory. The legislature adopted S.C.R. No. 149, S.D. 1, regular session of 2013, urging Hawaii residents and businesses to comply with the Convention on International Trade in Endangered Species of Wild Fauna and Flora and not buy or sell ivory of unknown origin. Despite this notice, ivory of unknown origin and age continues to be sold in Hawaii. Furthermore, it is usually impossible to determine the age of ivory or to distinguish elephant ivory from ivory of another species, except by laboratory examination by scientific experts.

The legislature further finds that if the prohibition of the sale of ivory applies to only elephants, it may result in an increase in the poaching of other species as the demand for ivory will skyrocket. Thus, these already endangered species would be placed at the same risk of extinction as the African elephant.

The purpose of this Act is to establish a new chapter in the Hawaii Revised Statutes to:

(1) Establish the offense of the unlawful sale or trade of ivory products for any person who imports, sells, offers to sell, or possesses with the intent to sell any ivory product;

(2) Define "ivory products" to include ivory from elephants, hippopotamuses, walruses, whales, and narwhals;

(3) Create exemptions for the sale or trade of ivory products, including antique ivory or ivory legally imported prior to 1975 if from an Asian elephant or prior to 1990 if from an African elephant; provided that the seller can demonstrate that the ivory product meets the requirements per Director's Order No. 210 dated February 25, 2014, from the United States Fish and Wildlife Service, "Administrative Actions to Strengthen U.S. Trade Controls for Elephant Ivory, Rhinoceros Horn, and Parts and Products of Other Species Listed Under the Endangered Species Act (ESA)"; and

(4) Authorize the forfeiture of seized ivory products and provide penalties.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

unlawful sale or trade of ivory products

§ -1 Findings and purpose. The legislature finds that African elephants are nearing extinction due to the high price of ivory and consumer demand. Since 1978, the African elephant has been listed as threatened under the Endangered Species Act of 1973, title 16 U.S.C. section 1531 et seq. Nevertheless, trade in elephant ivory continues to jeopardize the existence of elephants, which often are slaughtered by poachers intent on supplying elephant ivory for commercial sale.

Despite current law prohibiting the sale of African elephant ivory imported after 1990, much of the ivory sold in Hawaii is likely illegal or of unknown origin, and fraudulent documents often are used to falsely claim that the ivory predates 1990. As it is nearly impossible, without laboratory examination by scientific experts, to determine the age of ivory or to distinguish elephant ivory from ivory of another species, the legislature finds it necessary to ban the sale of ivory products from a range of animals having ivory teeth and tusks.

The purpose of this chapter is to ensure the continued existence of African elephants and other animals that have ivory teeth or tusks by taking positive actions to enhance prospects for their survival by establishing the offense of unlawful sale or trade of ivory products to prohibit any person, trust or estate, or business, firm, partnership, or other legal entity from importing, selling, offering to sell, or possessing with intent to sell any ivory product, regardless of the age of the ivory, from elephants, hippopotamuses, walruses, whales, or narwhals and create exemptions for the sale or trade of ivory products, including antique ivory or ivory legally imported prior to 1975 if from an Asian elephant or prior to 1990 if from an African elephant; provided that the seller can demonstrate that the ivory product meets the requirements of Director's Order No. 210 dated February 25, 2014, from the United States Fish and Wildlife Service, "Administrative Action to Strengthen U.S. Trade Controls for Elephant Ivory, Rhinoceros Horn, and Parts and Products of Other Species Listed Under the Endangered Species Act (ESA)".

§ -2 Definitions. As used in this chapter unless the context otherwise requires:

"Department" means the department of land and natural resources.

"Ivory product" means any product, regardless of age, containing or advertised as containing raw or worked ivory teeth or tusks from any of the following species of wildlife:

(1) Elephants;

(2) Hippopotamuses;

(3) Walruses;

(4) Whales; and

(5) Narwhals.

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

"Sale" or "sell" means all acts of selling, trading, or bartering for monetary or nonmonetary consideration, including online and internet sales.

§ -3 Unlawful sale or trade of ivory products. (a) A person commits the offense of unlawful sale or trade of ivory products if the person imports, sells, offers to sell, or possesses with intent to sell any ivory product. The act of obtaining an appraisal of the ivory product shall not alone constitute possession with intent to sell.

(b) A person convicted of committing the offense of unlawful sale or trade of ivory products 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 not less than $1,000, or an amount equal to two times the total value of the ivory products involved in the offense, whichever is greater, or the person may be 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 not less than $5,000, or an amount equal to two times the total value of the ivory products involved in the offense, whichever is greater, or the person may be sentenced to a term of imprisonment, or both.

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

(2) Persons importing ivory products that are expressly authorized by federal license or permit; or

(3) Persons selling, offering for sale, or possessing with intent to sell any ivory product or product containing ivory when the person possesses documentation, and provides the documentation to the person purchasing the ivory product and to the department upon request, that:

(A) Clearly matches the description of the ivory product;

(B) Demonstrates that the specific ivory product was:

(i) Legally imported to the United States prior to 1975 if the ivory product is Asian elephant ivory;

(ii) Legally imported to the United States prior to 1990 if the ivory product is African elephant ivory; or

(iii) For walrus and whale species, legally possessed or imported to the United States prior to 1972;

(C) Provides definitive proof of the identity of the species of which the ivory product is composed in whole or in part; provided that proof shall be demonstrated in the following forms:

(i) A bona fide DNA analysis;

(ii) A qualified appraisal as that term is defined in Director's Order No. 210 dated February 25, 2014, from the United States Fish and Wildlife Service, "Administrative Actions to Strengthen U.S. Trade Controls for Elephant Ivory, Rhinoceros Horn, and Parts and Products of Other Species Listed Under the Endangered Species Act (ESA)", and Director's Order No. 210, Appendix 1; or

(iii) Other documentation that definitively demonstrates the identification of the species through a detailed chain of ownership analysis of the ivory product; and

(D) Demonstrates that the ivory product meets the federal definition of antique, as provided by title 16 U.S.C. section 1539(h).

(d) For the purposes of this section, "total value of the ivory products" means the fair market value of the ivory products or the actual price paid for the ivory products, whichever is greater.

§ -4 Disposition of seized ivory products. Upon conviction or other entry of judgment for a violation of this chapter, any seized ivory products shall be subject to forfeiture pursuant to chapter 712A. Ivory products seized and forfeited may be destroyed or offered to an entity possessing a permit for educational or scientific activities.

§ -5 Remedies. Nothing in this chapter shall be construed to prohibit or impair any civil or administrative action or penalty available in law or equity.

§ -6 Rules. The department shall adopt rules in accordance with chapter 91 to effectuate the purposes of this chapter."

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. This Act shall take effect on July 1, 2050.

HOUSE OF REPRESENTATIVES	H.B. NO.	493
TWENTY-SEVENTH LEGISLATURE, 2013		H.D. 1
STATE OF HAWAII		S.D. 2