SB2647.DOC

SECTION 1. The legislature finds that the trafficking of animals threatened with extinction continues to grow at an alarming pace, threatening an increasing variety of animal species. The threat of extinction is due in large part to the trafficking of animal parts and products. The National Strategy for Combating Wildlife Trafficking, released in February 2014, recognized the important role that states have in protecting species that are subject to illegal wildlife trade. Federal law regulates the transfer and importation of parts or products made from endangered animal species, but due to the increasing demand for these products around the world, it is important to align state authority with federal and international laws to appropriately regulate these markets on a local level.

The legislature finds that the most effective way to discourage illegal trafficking is to eliminate markets and profits. It is in the public interest to protect animal species threatened with extinction by prohibiting within the State, with certain limited exceptions, the sale, offer for sale, purchase, trade, or barter for any part or product of any species of elephant (Elephantidea), mammoth (Mammuthus), rhinoceros (Rhinocerotidea), tiger (Panthera tigris), great apes (Hominoidea), sharks and rays (Elasmobranchii), sea turtles (Chelonioidea), walrus (Odobenus rosmarus), narwhal (Monodon monoceros), whales (Cetacea), hippopotamus (Hippopotamus amphibious), monk seals (Neomonachus), lions (Panthera leo), pangolins (Manis), cheetah (Acinonyx jubatus), jaguar (Panthera onca) and leopard (Panthera pardus) identified as threatened with extinction by specified international conservation organizations. These animals represent some of the most trafficked species threatened with extinction according to illegal wildlife product seizure data gathered by the World Wildlife Fund-TRAFFIC, International Union for the Conservation of Nature, and other international conservation organizations.

The legislature further finds that in September 2015, the United States and China announced a cooperative effort to take comprehensive action to curb wildlife trafficking, including significant restrictions on the import of ivory as hunting trophies and halting the domestic commercial trade of ivory. As the host of the upcoming International Union for the Conservation of Nature World Conservation Congress with the United States in September 2016, it is important to demonstrate Hawaii's continuing leadership in global conservation challenges such as international wildlife trafficking and endangered species protection.

The purpose of this Act is to improve coordination between state natural resource laws and other government authorities as encouraged in section 183D-8, Hawaii Revised Statutes, and to remove any potential conflicts of law that unintentionally make Hawaii an attractive market for illegal wildlife trafficking as other countries and states pass legislation to protect global populations of endangered species.

SECTION 2. Chapter 183D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§183D- Wildlife trafficking; prohibited. (a) Except as authorized under section 183D-6, no person shall sell, offer to sell, purchase, trade, or barter for any part or product from the following animal species: elephant (Elephantidea), rhinoceros (Rhinocerotidea), tiger (Panthera tigris), great apes (Hominoidea), hippopotamus (Hippopotamus amphibious), lions (Panthera leo), pangolins (Manis), cheetah (Acinonyx jubatus), jaguar (Panthera onca) or leopard (Panthera pardus).

(b) Except as authorized under section 183D-6, no person shall sell, offer to sell, purchase, trade, or barter for any part or product from the follow marine species: sea turtles (Chelonioidea), monk seals (Neomonachus), narwhal (Monodon monoceros), whales (Cetacea), or walrus (Odobenus rosmarus) insofar as the species, subspecies, or distinct population segment is listed:

(1) On appendix I or II of the Convention on International Trade in Endangered Species;

(2) As endangered or critically endangered on the International Union for the Conservation of Nature red list; or

(3) As endangered under the Endangered Species Act.

(c) Except as authorized under section 183D-6, no person shall sell, offer to sell, purchase, trade, or barter for any part or product from rays and sharks (Elasmobranchii) insofar as the species is listed:

(1) On appendix I of the Convention on International Trade in Endangered Species; or

(2) As endangered under the Endangered Species Act.

(d) Except as authorized under section 183D-6, no person shall sell, offer to sell, purchase, trade, or barter for any part or product from mammoth (Mammuthus), although the species is extinct.

(e) None of the prohibitions set forth in this section shall apply if:

(1) The covered animal species part or product is part of a bona fide antique; provided that:

(A) The antique status of such a part or product is established by the owner or seller thereof with historical documentation evidencing provenance and showing the antique to be not less than one hundred years old; and

(B) The covered animal species part or product is less than ten per cent by volume of such an antique;

(2) The distribution of the covered animal species part or product is:

(A) For a bona fide educational or scientific purpose; or

(B) To or from a museum;

(3) The distribution of the covered animal species part or product is to a legal beneficiary of an estate, trust, or other inheritance, upon the death of the owner of the covered animal species part or product;

(4) The covered animal species part or product is less than ten per cent by volume of a musical instrument, including without limitation string instruments and bows, wind and percussion instruments, and pianos, if the owner or seller provides historical documentation demonstrating provenance and showing the item was manufactured no later than 1975; or

(5) The intrastate sale, offer for sale, purchase, trade, or barter of the covered animal species part or product is expressly authorized by federal law or permit.

(f) There is established a rebuttable presumption of possession with intent to sell a covered animal species part or product when the part or product is possessed by a retail or wholesale establishment or other forum engaged in the business of buying or selling similar items. This rebuttable presumption shall not preclude a finding of intent to sell based on any other evidence that may serve to independently establish such intent.

(g) None of the prohibitions set forth in this section shall apply to traditional cultural practices expressly protected under article XII, section 7, of the state constitution.

(h) For the purposes of this section, "covered animal species part or product" means any part or product of an animal species prohibited from being sold, offered for sale, purchased, traded, or bartered for pursuant to this section."

SECTION 3. Section 183D-5, Hawaii Revised Statutes, is amended to read as follows:

"§183D-5 Penalties. (a) Any person violating section 183D-21, 183D-25, 183D-33, or 183D-63 or any rule adopted under this chapter shall be guilty of a petty misdemeanor, and upon conviction thereof, shall be punished as follows:

(1) For a first conviction, by a mandatory fine of not less than $100, or imprisonment of not more than thirty days, or both;

(2) For a second conviction within five years of a previous conviction, by a mandatory fine of not less than $500, or by imprisonment of not more than thirty days, or both, and all firearms used in the commission of the violations shall be considered contraband to be forfeited to and disposed of by the State; and

(3) For a third or subsequent conviction within five years of the first two or more convictions, by a mandatory fine of not less than $1,000, or by imprisonment of not more than thirty days, or both, and all firearms used in the commission of the violations shall be considered contraband to be forfeited to and disposed of by the State.

(b) Any person violating section 183D- , 183D-25.5, 183D‑26, 183D-27, 183D-32, 183D-62, or 183D-64 shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished as follows:

(1) For a first conviction by a mandatory fine of not less than $200, or by imprisonment of not more than one year, or both;

(2) For a second conviction within five years of a previous conviction, by a mandatory fine of not less than $1,000, or by imprisonment of not more than one year, or both, and all firearms, animal parts, products, or items containing prohibited animal parts or products used in the commission of the violations shall be considered contraband to be forfeited to and disposed of by the State; and

(3) For a third or subsequent conviction within five years of the first two or more convictions, by a mandatory fine of not less than $2,000, or by imprisonment of not more than one year, or both, and all firearms, animal parts, products, or items containing prohibited animal parts or products used in the commission of the violations shall be considered contraband to be forfeited to and disposed of by the State.

(c) Any person who violates section 183D-52 shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished as follows:

(1) For a first conviction, by a mandatory fine of not less than $10,000 and payment of any costs incurred in the eradication of any deer and the deer's progeny that has been possessed, transferred, transported, or released after transport, or by imprisonment of not more than one year, or both;

(2) For a second conviction within five years of a previous conviction, by a mandatory fine of not less than $15,000 and payment of any costs incurred in the eradication of any deer and the deer's progeny that has been possessed, transferred, transported, or released after transport, or by imprisonment of not more than one year, or both; and

(3) For a third or subsequent conviction within five years of the first two or more convictions, by a mandatory fine of not less than $25,000 and payment of any costs incurred in the eradication of any deer and the deer's progeny that has been possessed, transferred, transported, or released after transport, or by imprisonment of not more than one year, or both.

(d) Any person who violates section 183D-35, 183D-36, 183D-37, 183D-38, 183D-39, 183D-40, or 183D-42 shall be guilty of a petty misdemeanor, and upon conviction thereof, shall be fined not less than $100 or imprisoned not more than thirty days, or both.

(e) In addition to any other penalty imposed under this section, a mandatory fine of $100 shall be levied for each bird illegally taken under this chapter and a mandatory fine of $500 shall be levied for each mammal illegally taken under this chapter.

(f) Any person who is convicted of violating any of the game laws of the State shall immediately have the person's hunting license forfeited and any person convicted for a second offense shall not be granted a license to hunt for a period of three years after the date of the second conviction.

(g) The environmental court, in lieu of the actual cash payment of any mandatory fine, may allow the defendant to perform the community service as directed by the department of land and natural resources at the rate of one hour of service for every $10 of mandatory fine imposed.

(h) Any criminal action against a person for any violation of this chapter shall not be deemed to preclude the State from pursuing civil legal action to recover administrative fines and costs against that person. Any civil legal action against a person to recover administrative fines and costs for any violation of subtitle 4 of title 12 or any rule adopted thereunder shall not be deemed to preclude the State from pursuing any criminal action against that person.

(i) Except as otherwise provided by law, and in addition to, and separate from, any other penalty provided by law, the board or its authorized representative may set, charge, and collect the following administrative fines:

(1) For a first violation, a fine of not more than $2,500;

(2) For a second violation within five years of a previous violation, a fine of not more than $5,000; and

(3) For a third or subsequent violation within five years of the first violation, a fine of not more than $10,000;

or bring legal action to recover administrative fines, fees, and costs as documented by receipts or affidavit; payment for damages; or costs to correct damages resulting from a violation of this chapter."

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. 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 6. New statutory material is underscored.

SECTION 7. This Act shall take effect on January 1, 2017.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2647
TWENTY-EIGHTH LEGISLATURE, 2016
STATE OF HAWAII