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 AB 96 Page 2 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. AB 96 Page 3 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 Page 4 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. AB 96 Page 5 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. AB 96 Page 6 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 AB 96 Page 7 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 AB 96 Page 8 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 AB 96 Page 9 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 AB 96 Page 10 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 AB 96 Page 11 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 AB 96 Page 12 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 AB 96 Page 13 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