California Legislature—2015–16 Regular Session

Assembly Bill No. 96

Introduced by Assembly Member Atkins

(Principal coauthor: Senator Lara)

(Coauthors: Assembly Members Bloom, Bonta, Levine, Maienschein, McCarty, Rendon, and Williams)

(Coauthor: Senator Pavley)

January 7, 2015

An act to add Section 2022 to the Fish and Game Code, and to repeal Section 5 of Chapter 692 of the Statutes of 1976, relating to animal parts and products.

LEGISLATIVE COUNSEL’S DIGEST

AB 96, as introduced, Atkins. Animal parts and products: importation or sale of ivory and rhinoceros horn.

Existing law makes it a crime to import into the state for commercial purposes, to possess with intent to sell, or to sell within the state, the dead body, or any part or product thereof, of an elephant. Existing law exempts the possession with intent to sell, or sale of the dead body, or any part or product thereof, of any elephant before June 1, 1977, or the possession with intent to sell or the sale of any such item on or after June 1, 1977, if the item was imported before January 1, 1977.

This bill would delete this exemption. By changing the definition of a crime, this bill would impose a state-mandated local program.

This bill would prohibit a person from purchasing, selling, offering for sale, possessing with intent to sell, or importing with intent to sell ivory or rhinoceros horn, except as specified, and would make this prohibition enforceable by the Department of Fish and Wildlife. The bill would make a violation of this provision or any rule, regulation, or order adopted pursuant to this provision a misdemeanor subject to specified criminal penalties. By creating a new crime, the bill would impose a state-mandated local program. In addition to the specified criminal penalties, the bill would authorize the department to impose a civil penalty of up to $10,000 for a violation of this provision or any rule, regulation, or order adopted pursuant to this provision. The bill would authorize the department to permit the purchase, sale, offer for sale, possession with intent to sell, or importation with intent to sell ivory or rhinoceros horn for educational or scientific purposes by a bona fide educational or scientific institution if certain criteria are satisfied.

This bill would provide that the provisions of this bill are severable.

This bill would make these provisions operative on July 1, 2016.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) There is worldwide concern regarding the plight of elephants
and rhinoceroses, who are being poached at alarming rates -- an
average of 96 elephants per day are killed in Africa.

(b) Illegal poaching and wildlife trafficking is the fourth largest
transnational crime and ivory helps fund the military operations
of notorious terrorist groups. Smuggling gangs move tons of tusks
to markets thousands of miles away.

(c) International, federal, and state laws are all being
strengthened to protect these iconic species from cruelty and
extinction. The states of New York and New Jersey recently
enacted strong prohibitions on intra-state ivory and rhinoceros
horn commerce and the federal government has proposed
strengthened ivory trade and import regulations.

(d) California has prohibited the ivory trade since 1977, but a
loophole has rendered the law unenforceable -- allowing illegal
sales to flourish. San Francisco and Los Angeles have consistently
ranked among the top trading markets for illegal ivory in the United
States.

SEC. 2.  

Section 2022 is added to the Fish and Game Code, to
read:

2022.  

(a) For the purposes of this section, the following terms
have the following meanings:

(1) “Bona fide educational or scientific institution” means an
institution that establishes through documentation either of the
following:

(A) Educational or scientific tax exemption, from the federal
Internal Revenue Service or the institution’s national, state, or
local tax authority.

(B) Accreditation as an educational or scientific institution,
from a qualified national, regional, state, or local authority for the
institution’s location.

(2) “Ivory” means a tooth or tusk from a species of elephant,
hippopotamus, mammoth, walrus, whale, or narwhal, or a piece
thereof, whether raw ivory or worked ivory, and includes a product
containing, or advertised as containing, ivory.

(3) “Rhinoceros horn” means the horn, or a piece thereof, or a
derivative such as powder, of a species of rhinoceros, and includes
a product containing, or advertised as containing, a rhinoceros
horn.

(4) “Sale” or “sell” means selling, trading, bartering for
monetary or nonmonetary consideration, giving away in
conjunction with a commercial transaction, or giving away at a
location where a commercial transaction occurred at least once
during the same or the previous calendar year.

(5) “Total value” means either the fair market value or the actual
price paid for ivory or rhinoceros horn, whichever is greater.

(b) Except as provided in subdivisions (c) and (d), a person shall
not purchase, sell, offer for sale, possess with intent to sell, or
import with intent to sell ivory or rhinoceros horn.

(c) The prohibitions set forth in subdivision (b) shall not apply
to any of the following:

(1) An employee or agent of the federal or state government
undertaking a law enforcement activity pursuant to federal or state
law, or a mandatory duty required by federal law.

(2) An activity that is authorized by an exemption or permit
under federal law or that is otherwise expressly authorized under
federal law.

(3) Ivory or rhinoceros horn that is part of a musical instrument,
including, but not limited to, a string or wind instrument or piano,
and that is less than 20 percent by volume of the instrument, if the
owner or seller provides historical documentation demonstrating
provenance and showing the item was manufactured no later than
1975.

(4) Ivory or rhinoceros horn that is part of a bona fide antique
and that is less than five percent by volume of the antique, if the
antique status is established by the owner or seller of the antique
with historical documentation demonstrating provenance and
showing the antique to be not less than 100 years old.

(d) The department may permit the purchase, sale, offer for sale,
possession with intent to sell, or importation with intent to sell
ivory or rhinoceros horn for educational or scientific purposes by
a bona fide educational or scientific institution if both of the
following criteria are satisfied:

(1) The purchase, sale, offer for sale, possession with intent to
sell, or import with intent to sell the ivory or rhinoceros horn is
not prohibited by federal law.

(2) The ivory or rhinoceros horn was legally acquired before
January 1, 1991, and was not subsequently transferred from one
person to another for financial gain or profit after July 1, 2016.

(e) It shall be presumptive evidence of possession with intent
to sell ivory or rhinoceros horn if the ivory or rhinoceros horn is
possessed in a retail or wholesale outlet commonly used for the
buying or selling of similar items. This presumption shall not
preclude a finding of intent to sell based on any other evidence
that may serve to independently establish that intent.

(f) For a violation of any provision of this section, or any rule,
regulation, or order adopted pursuant to this section, the following
criminal penalties shall be imposed:

(1) For a first conviction, where the total value of the ivory or
rhinoceros horn is two hundred fifty dollars ($250) or less, the
offense shall be a misdemeanor punishable by a fine of not less
than one thousand dollars ($1,000), or more than ten thousand
dollars ($10,000), imprisonment in the county jail for not more
than 30 days, or by both the fine and imprisonment.

(2) For a first conviction, where the total value of the ivory or
rhinoceros horn is more than two hundred fifty dollars ($250), the
offense shall be a misdemeanor punishable by a fine of not less
than five thousand dollars ($5,000), or more than forty thousand
dollars ($40,000), imprisonment in the county jail for not more
than one year, or by both the fine and imprisonment.

(3) For a second or subsequent conviction, where the total value
of the ivory or rhinoceros horn is two hundred fifty dollars ($250)
or less, the offense shall be a misdemeanor punishable by a fine
of not less than five thousand dollars ($5,000), or more than forty
thousand dollars ($40,000), imprisonment in county jail for not
more than one year, or by both the fine and imprisonment.

(4) For a second or subsequent conviction, where the total value
of the ivory or rhinoceros horn is more than two hundred fifty
dollars ($250), the offense shall be a misdemeanor punishable by
a fine of not less than ten thousand dollars ($10,000), or more than
fifty thousand dollars ($50,000) or the amount equal to two times
the total value of the ivory or rhinoceros horn involved in the
violation, whichever is greater, imprisonment in county jail for
not more than one year, or by both the fine and imprisonment.

(g) In addition to, and separate from, any criminal penalty
provided for under subdivision (f), a civil or administrative fine
of up to ten thousand dollars ($10,000) may be imposed for a
violation of any provision of this section, or any rule, regulation,
or order adopted pursuant to this section. Civil penalties authorized
pursuant to this subdivision may be imposed administratively by
the department consistent with all of the following:

(1) The chief of enforcement issues a complaint to any person
or entity on which an administrative civil penalty may be imposed
pursuant to this section. The complaint shall allege the act or failure
to act that constitutes a violation, relevant facts, the provision of
law authorizing the civil penalty to be imposed, and the proposed
penalty amount.

(2) The complaint and order is served by personal notice or
certified mail and informs the party served that the party may
request a hearing no later than 20 days from the date of service. If
a hearing is requested, it shall be scheduled before the director or
his or her designee, which designee shall not be the chief of
enforcement issuing the complaint and order. A request for hearing
shall contain a brief statement of the material facts the party claims
support his or her contention that no administrative penalty should
be imposed or that an administrative penalty of a lesser amount is
warranted. A party served with a complaint pursuant to this
subdivision waives the right to a hearing if no hearing is requested
within 20 days of service of the complaint, in which case the order
imposing the administrative penalty shall become final.

(3) The director, or his or her designee, shall control the nature
and order of the hearing proceedings. Hearings shall be informal
in nature, and need not be conducted according to the technical
rules relating to evidence. The director or his or her designee shall
issue a final order within 45 days of the close of the hearing. A
final copy of the order shall be served by certified mail upon the
party served with the complaint.

(4) A party may obtain review of the final order by filing a
petition for a writ of mandate with the superior court within 30
days of the date of service of the final order. The administrative
penalty shall be due and payable to the department within 60 days
after the time to seek judicial review has expired or, where the
party has not requested a hearing of the order, within 20 days after
the order imposing an administrative penalty becomes final.

(h) For any conviction or other entry of judgment for a violation
of this section resulting in a fine, the department may, upon
appropriation by the Legislature, pay one-half of the fine, but not
to exceed five hundred dollars ($500), to any person giving
information that led to the conviction or other entry of judgment.
This reward shall not apply if the informant is a regular salaried
law enforcement officer, or officer or agent of the department.

(i) Upon conviction or other entry of judgment for a violation
of this section, any seized ivory or rhinoceros horn shall be
forfeited and, upon forfeiture, either maintained by the department
for educational or training purposes, donated by the department
to a bona fide educational or scientific institution, or destroyed.

(j) This section does not preclude enforcement under Section
653o of the Penal Code.

SEC. 3.  

Section 5 of Chapter 692 of the Statutes of 1976 is
repealed.

begin delete

SEC. 5.  

Section 1 of this act shall become operative June 1,
1977. No provision of law shall prohibit the possession with intent
to sell, or sale of the dead body, or any part of product thereof, of
any elephant prior to June 1, 1977, or the possession with intent
to sell or the sale of any such item on or after such date which was
imported prior to the effective date of this act.

The burden of proof to demonstrate that such item or items were
imported prior to the effective date of this act shall be placed upon
the defendant.

end delete

SEC. 4.  

The provisions of this act are severable. If any
provision of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.

SEC. 5.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

SEC. 6.  

This act shall become operative on July 1, 2016.