BILL ANALYSIS Ó
AB 96
Page 1
Date of Hearing: March 10, 2015
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Levine, Chair
AB
96 (Atkins) - As Introduced January 7, 2015
SUBJECT: Animal parts and products: importation or sale of
ivory and rhinoceros horn
SUMMARY: Prohibits the importation or sale of elephant ivory or
rhinoceros horn in California. Specifically, this bill:
1)Prohibits a person from purchasing, selling, offering for
sale, possessing with intent to sell, or importing with intent
to sell, ivory or rhinoceros horn, with specified exceptions.
2)Exempts from the above prohibition all of the following:
a) State or federal employees undertaking a law
enforcement activity.
b) Activities authorized by federal law, as specified.
c) Ivory or rhinoceros horn that is part of a musical
instrument and is less than 20 percent by volume of the
instrument, if the owner or seller provides historical
documentation that the item was manufactured no later
than 1975.
d) Ivory or rhinoceros horn that is part of a bona fide
antique and is less than 5 percent by volume of the
antique, if the owner or seller provides historical
documentation that the antique is not less than 100 years
old.
3)Authorizes the Department of Fish and Wildlife (DFW) to permit
the purchase, sale, possession or importation of ivory or
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rhinoceros horn for educational or scientific purposes by a
bona fide educational or scientific institution, provided the
activity is not prohibited by federal law, and the item was
legally acquired before January 1, 1991 and was not
transferred for financial gain or profit after July 1, 2016.
4)Creates a presumption that ivory or rhinoceros horn possessed
in a retail or wholesale outlet constitutes possession with
intent to sell.
5)Authorizes criminal penalties for a violation of this bill as
follows:
a) For a first conviction involving ivory or rhinoceros
horn valued at $250 or less, the offense shall be a
misdemeanor punishable by a fine of not less than $1,000
or more than $10,000, imprisonment in county jail for not
more than 30 days, or both the fine and imprisonment;
b) For a first conviction involving ivory or rhinoceros
horn valued at more than $250, the offense shall be a
misdemeanor punishable by a fine of not less than $5,000
or more than $40,000, imprisonment in county jail for not
more than one year, or both the fine and imprisonment;
c) For a second or subsequent conviction involving
ivory or rhinoceros horn valued at $250 or less, the
offense shall be a misdemeanor punishable by a fine of
not less than $5,000 or more than $40,000, imprisonment
in county jail for not more than one year, or both the
fine and imprisonment; and
d) For a second or subsequent conviction involving
ivory or rhinoceros horn valued at more than $250, the
offense shall be a misdemeanor punishable by a fine of
not less than $10,000 or more than $50,000 or an amount
equal to two times the total value of the ivory or
rhinoceros horn, whichever is greater, imprisonment in
county jail for not more than one year, or both the fine
and imprisonment.
6)Authorizes, in addition to any criminal penalties, a civil or
administrative fine of up to $10,000. Authorizes civil
penalties to be imposed by the DFW, subject to specified
procedures, including the right to request a hearing, and to
petition for court review of a final administrative order.
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7)Authorizes the payment of a reward of up to $500 to any person
providing information leading to a conviction or entry of
judgment.
8)Provides that upon conviction or other entry of judgment, any
seized ivory or rhinoceros horn shall be forfeited.
9)Repeals existing provisions of law allowing possession of
elephant parts possessed or imported prior to June 1, 1977.
10)States legislative findings and declarations regarding the
threats to elephants and rhinoceros of illegal poaching and
wildlife trafficking, and actions being taken at the
international, federal and state levels to protect these
species from extinction.
11)Defines various terms for purposes of this bill.
12)Contains a delayed operative date of July 1, 2016.
EXISTING LAW:
1)Makes it unlawful to import into this state for commercial
purposes with intent to sell, or to sell within the state, the
dead body, or any part or product thereof, of any elephant.
Violations are punishable as a misdemeanor, subject to a fine
of not less than $1,000 and not more than $5,000, or
imprisonment in county jail for not more than six months, or
both the fine and imprisonment, for each violation.
2)Provides in uncodified language, that no provision of law
shall prohibit the possession with intent to sell, or sale of
the dead body, or any part or product thereof, of any elephant
prior to 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 the act in 1977. Further
provides that the burden of proof to demonstrate that such
items were imported prior to the effective date of the act
shall be placed upon the defendant.
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FISCAL EFFECT: Unknown
COMMENTS:
1)Purpose: The author has introduced this bill to protect
elephants and rhinoceros from poaching, by eliminating the
market value of poached ivory and rhinoceros horn in
California. Background information provided by the author's
office notes that the existing law, by grandfathering in ivory
possessed and acquired prior to June 1, 1977, makes it
virtually impossible to enforce the ban on ivory, since it is
very difficult to determine the age of the ivory. Although
the existing law places the burden of proof on the defendant,
that provision was never codified and therefore is rarely
applied in court.
The author further notes that: "Growing demand for elephant
ivory and rhinoceros horn is causing prices to soar for these
illegal commodities and the black market for poachers trading
in these illegal goods to thrive. The United States is one of
the largest consumers of illegal ivory in the world, and
California is the second largest U.S. retail market for
illegal ivory behind the state of New York, which recently
passed a law banning such sales?.On average, 96 elephants per
day are brutally killed for their ivory, translating into an
average of over 35,000 elephants per year. This type of
species loss is unsustainable and African elephants are now
being slaughtered faster than they are being born -- which
will eventually result in their extinction. Protecting and
preserving the elephant and rhinoceros populations is a key
national and international imperative."
In addition, the current law in California makes no reference to
rhinoceros which are poached for their horns and are also
imperiled.
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This bill addresses the loopholes in existing law that make
enforcing the ban on importation and sale of ivory difficult
by:
a) Repealing the exemption for ivory possessed or
imported prior to 1977 (limited exceptions for musical
instruments and antiques are retained);
b) Codifying the provision placing the burden of proof
on the defendant to prove that the ivory meets the
limited exceptions for musical instruments and antiques;
c) Adding express protection for rhinoceros.
d) Increasing penalties for violations.
2)Current Status of elephants and rhinoceros: Worldwide most
elephant and rhinoceros populations are in serious decline,
and are classified as threatened, endangered or critically
endangered. Elephants are large mammals of the family
Elephantidae. They are the only surviving family of the order
Proboscidea. Other now extinct families of the order include
mammoths and mastodons. Two species of elephants are
generally recognized today - the African elephant, Loxodonta
africana, and the Asian elephant, Elephas maximus. Male
African elephants are the largest terrestrial animal living
today, and can reach a size of 13 feet in height and 15,000
lbs. in weight. Elephants are herbivores, and are considered
keystone species due to their impact on their environments.
Female elephants and young tend to live together in large
matriarchal family groups. Calves are dependent on their
mothers for up to three years. Elephants can live up to 70
years in the wild, and are known to be intelligent animals,
similar to primates and cetaceans. They use multiple modes of
communication, appear to have self-awareness, and exhibit
emotional responses to dying or dead individuals of their own
kind.
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The current population of elephants in Africa is uncertain.
According to the USFWS, the most recent studies estimate the
African elephant population at about 600,000, which is a
decrease of about 50% over the past 40 years. Asian elephants
numbered around 80,000 near the beginning of the 20th Century,
but today's population is less than half that, with about
20,000 living in India and the remainder scattered throughout
other Asian countries.
According to a study published in an August issue of the
Proceedings of the National Academy of Sciences, an estimated
100,000 elephants were illegally slaughtered from 2010-2012.
More than 30,000 elephants were estimated poached in 2012
alone, and another 20,000 in 2013. With poaching at these
levels, some scientists believe the population may be
significantly lower today than the estimated 600,000
population referenced above.
Rhinoceros include five species belonging to the family
Rhinocerotidae. Two species, the White and Black Rhinoceros,
are native to Africa, and three species, the Indian, Javan and
Sumatran Rhinoceros, are native to Southern Asia. The White
Rhinoceros consists of two subspecies, the northern
subspecies, which is endangered, and the southern subspecies,
which resides primarily in South Africa and is currently the
most abundant of the subspecies. Black Rhinoceros numbers
were significantly reduced in the latter half of the 20th
Century, have increased some since then, but are still about
90% below historic population levels. The three Asian species
are all endangered.
Some subspecies of rhinoceros in Asia have already gone
extinct. A subspecies of the Javan Rhinoceros is now extinct,
with the last individual poached in Viet Nam in 2012. The
other nominate subspecies of the Javan Rhinoceros is now found
only in one small population of 35-40 individuals which exist
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only in West Java, Indonesia.
As keystone species, both elephants and rhinoceros play a key
role in maintaining the biodiversity of other species in the
African ecosystem. Elephants pull down trees and break up
thorny bushes, which helps create grasslands on which other
animals live. They create nutrient-rich salt licks for other
animals, dig waterholes in dry riverbeds that other animals
use for water, and create trails that act as fire breaks and
water diversions. Rhinoceros play a similar role in helping
to maintain biodiversity. By selectively grazing on different
plants, they allow other vegetation to grow that would
otherwise be unable to compete. Scientists have found that
areas where rhinoceros reside have 60-80% more short grass
cover than areas where they are not found. As a result, these
areas are home to an abundance of smaller animals such as
zebra, gazelle, antelope, wildebeest, and cape buffalo.
3)Ivory Trade in the U.S.: The U.S. is the second largest
market for ivory in the world, after China. California
provides the second largest market in the U.S. after New York.
Both New York and New Jersey enacted new laws in 2014 banning
the ivory trade. Other states currently considering adoption
of new stronger laws prohibiting commercial trade in ivory
include Hawaii, Florida, Connecticut and Massachusetts.
California provides major markets that support sales of elephant
ivory. Previous surveys identified Los Angeles and San
Francisco as the U.S. cities with the highest proportions of
potentially illegal ivory sales, and the largest ivory markets
overall, behind New York City. A 2014 study of the two cities
by the Natural Resources Defense Council found over 1,250
ivory items offered for sale by 107 vendors, including 77
vendors in Los Angeles and 30 vendors in San Francisco. In
Los Angeles, between 77% and 90% of the ivory seen was
determined to be likely illegal under California law and
between 47% and 60% likely illegal under federal law. In San
Francisco, approximately 80% of the ivory was determined to be
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likely illegal under California law, and 52% likely illegal
under federal law. The study also found there was a much
higher incidence of recently manufactured ivory, roughly
doubling from approximately 25% in 2006 to 50% in 2014.
4)Other State Actions: Both New York and New Jersey enacted new
laws in 2014 banning the ivory trade. Other states currently
considering adoption of new stronger laws prohibiting
commercial trade in ivory include Hawaii, Florida, Connecticut
and Massachusetts.
5)Legal trade in ivory serves as cover for illegal trade, which
may also be a growing source of funding for terrorist
activities. According to the U.S. Fish and Wildlife Service
(USFWS), a substantial amount of elephant ivory is illegally
imported and enters the domestic market in the United States.
The USFWS acknowledges it is extremely difficult to
differentiate legally acquired ivory from ivory derived from
elephant poaching. According to the USFWS, criminal
investigations and anti-smuggling efforts have clearly shown
that legal ivory trade can serve as a cover for illegal trade.
As one example, USFWS and state officers seized more than two
million dollars of illegal elephant ivory from two New York
City retail stores in 2012. The USFWS advises that by
significantly restricting ivory trade in the United States, it
will be more difficult to launder illegal ivory into the
market and thus reduce the threat of poaching to imperiled
elephant populations. Involvement of transnational organized
crime operations in the illicit ivory trade has also been
documented by international authorities. In addition,
numerous news outlets have reported on suspicions that ivory
poaching is becoming a growing source of funding for several
terrorist organizations, including the Janjaweed militia in
Sudan and the Lord's Resistance Army in Uganda, and possibly
including terrorist groups in Somalia.
6)Status of Federal efforts: The Asian elephant was listed as
endangered under the federal Endangered Species Act (ESA) in
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1976, and the African elephant was listed as threatened under
the Act in 1978. In addition to the ESA protections, the
African Elephant Conservation Act, enacted in 1989, prohibits
the importation of raw African elephant ivory from any country
other than an ivory producing country that belongs to the
Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES).
The three Asian rhinoceros species, the Black Rhinoceros in
Africa, and the northern population of the White Rhinoceros
are all listed as endangered under the ESA. The southern
population of White Rhinoceros was listed as threatened under
the ESA in 2014 due to similarity of appearance with other
endangered populations.
In July 2013, President Obama issued an Executive Order
committing the U.S. to step up efforts to combat wildlife
trafficking, including illegal commercial trade in elephant
ivory. The USFWS is promulgating new regulations to implement
a more complete ban on commercial trade in elephant ivory.
The regulations, which are a work in progress, generally ban
all commercial imports of African elephant ivory, with certain
specified exceptions; permit Asian elephant ivory to be
imported under limited circumstances with proper
documentation; prohibit the export of elephant ivory from the
U.S. with certain specified exceptions; and make it illegal to
engage in interstate or intrastate sales of ivory unless
certain specified exceptions apply. For more detail on the
federal regulations, see:
http://www.fws.gov/international/travel-and-trade/ivory-ban-que
stions-and-answers.html .
7)International Efforts: The Convention on International Trade
in Endangered Species of Wild Fauna and Flora, known as CITES,
is an international voluntary agreement between governments,
the aim of which is to ensure that international trade in
specimens of wild animals and plants does not threaten their
survival. The United States is a signatory to the agreement,
which today has 180 participating parties. Wildlife species
of concern are listed under CITES in either Appendix I, II, or
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III. Species listed in Appendix I are those species that are
the most endangered and threatened with extinction.
Commercial trade in these species is generally prohibited,
with certain exceptions. Appendix II lists species that may
become threatened with extinction unless trade is closely
controlled. Trade in Appendix II species may be authorized
pursuant to an export permit. Asian elephants have been
listed in Appendix I since 1975; African elephants were listed
under Appendix II in 1977, moved to Appendix I in 1990, and
today are listed under either Appendix I or Appendix II,
depending on the country and subpopulation. All Rhinoceros
are listed under Appendix I, except for those populations in
South Africa and Swaziland. Southern White Rhinoceros
populations in South Africa and Swaziland are listed under
Appendix II. Importation of ivory for commercial purposes has
been banned under CITES since 1990.
According to recent reports of CITES, over 20,000 elephants were
poached in Africa alone in 2013. Poaching remains alarmingly
high and continues to far exceed the natural elephant
population growth rates. CITES also reports that there was a
clear increase in large seizures of ivory in Africa,
indicative of transnational organized crime involvement in the
illicit ivory trade. While the numbers of elephants estimated
poached in 2013 was lower than the peak in 2011, the number
exceeded 20,000 for each year from 2011 to 2013.
A 2013 CITES report on rhinoceros similarly found that illegal
trade in rhinoceros horn continues to be one of the most
structured criminal activities currently facing CITES. The
report notes there are clear indications that organized
criminal groups are involved in poaching and illegal trade of
rhinoceros horn. Since 2010, losses of rhinoceros in South
Africa from poaching have been increasing. While overall
population numbers there had not declined yet as of 2013, the
report warned some populations could go into decline if the
illegal killing escalates. The report also noted the number
of rhinoceros killed in South Africa had reached its highest
levels in recent history, and will be unsustainable if
continued at the current rate. The report further notes 7
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people were arrested in the United States in February 2012 for
illegal trafficking in rhinoceros horn. The report found that
while as of 2013 the overall population of white and black
rhinoceros in Africa had increased slightly in spite of the
high poaching rates, the level of deaths could exceed births
by 2015-16. The report concludes that rhinoceros are facing a
crisis that threatens to reverse the conservation achievements
of the last two decades if not abated.
Support Arguments: Supporters emphasize this bill will clarify
California's law prohibiting ivory importation and sale, protect
endangered species, and aid in combating international
terrorism. Supporters stress that elephant poaching may soon
drive the species to the brink of extinction. In addition,
trade from the ivory black market is now a crucial source for
funding terrorist groups such as the Janjaweed militia in Sudan
and the Lord's Resistance Army in Uganda. Transnational
organized crime has also increasingly taken part in the illegal
trade because of the lucrative profits from ivory sales. If
current poaching rates continue, elephants and rhinoceros could
be extinct in a decade or less. Supporters further emphasize
one of the most effective ways to protect elephants and
rhinoceros is to eliminate the market by prohibiting the
purchase and sale of ivory and rhinoceros horn.
Opposition Arguments: The National Rifle Association and
California Rifle and Pistol Association oppose this bill because
they believe it would harm collectors and sportsmen who own
firearms made with ivory, and would amount to a taking of
property by prohibiting the sale of these items. The NRA argues
that the exceptions in AB 96 for antiques do not adequately
address these concerns because owners may not have the
documentation to prove that the antique gun is more than 100
years old. In addition, the exception for bona fide antiques
applies only to antiques with less than 5% ivory content, which
would exclude some weapons that were lawfully purchased prior to
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the ban.
REGISTERED SUPPORT / OPPOSITION:
Support
The Humane Society of the United States (co-sponsor)
Natural Resources Defense Council (co-sponsor)
California Association of Zoos and Aquariums (co-sponsor)
Oakland Zoo (co-sponsor)
Wildlife Conservation Society (co-sponsor)
AFSCME, AFL-CIO
Aquarium of the Bay
Asian Pacific Alliance for Wildlife Sustainability (APAWS)
Big Life Foundation
Bornean Sun Bear Conservation Centre
Budongo Conservation Field Station, Uganda
Cabrillo Marine Aquarium
California Commission on Asian and Pacific Islander American
Affairs
California Travel Association
California Wolf Center
Charles Paddock Zoo
City and County of San Francisco
City of Oakland
CuriOdyssey
Defenders of Wildlife
Earth Island Institute
East Bay Zoological Society
Happy Hollow Park & Zoo
In Defense of Animals
International Fund for Animal Welfare
Living Desert
Los Angeles Zoo
Lubee Bat Conservancy
March for Elephants
Monterey Bay Aquarium
Performing Animal Welfare Society
New Nature Foundation
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Relief International
Sacramento Zoo
San Diego Zoo and Safari Park
San Francisco Commission of Animal Control and Welfare
San Francisco SPCA
San Francisco Zoo
Santa Barbara Zoo
SeaWorld San Diego
Senator Dianne Feinstein
Sequoia Park Zoo
Sierra Club California
Tembo Preserve
The Resolve LRA Crisis Initiative
Uganda Carnivore Program
WILDAID
Numerous Individuals
Opposition
California Rifle and Pistol Association, Inc.
National Rifle Association
Analysis Prepared
by: Diane Colborn/W.,P. & W./(916) 319-2096