BILL ANALYSIS                                                                                                                                                                                                    



                                                                      AB 96


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          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.









                                                                      AB 96


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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