BILL ANALYSIS Ó
AB 96
Page 1
ASSEMBLY THIRD READING
AB
96 (Atkins)
As Introduced January 7, 2015
Majority vote
-----------------------------------------------------------------
|Committee |Votes |Ayes |Noes |
| | | | |
| | | | |
|----------------+------+--------------------+--------------------|
|Water |10-2 |Levine, Cristina |Beth Gaines, Harper |
| | |Garcia, Dodd, | |
| | |Gomez, Gray, Lopez, | |
| | |Medina, Rendon, | |
| | | | |
| | | | |
| | |Ridley-Thomas, | |
| | |Williams | |
| | | | |
|----------------+------+--------------------+--------------------|
|Appropriations |12-4 |Gomez, Bonta, |Bigelow, Gallagher, |
| | |Calderon, Daly, |Jones, Wagner |
| | |Eggman, | |
| | | | |
| | | | |
| | |Eduardo Garcia, | |
| | |Gordon, Holden, | |
| | |Quirk, Rendon, | |
| | |Weber, Wood | |
| | | | |
| | | | |
AB 96
Page 2
-----------------------------------------------------------------
SUMMARY: Prohibits the importation or sale of elephant ivory or
rhinoceros horn in California. Specifically, this bill:
1)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.
2)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.
3)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% 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.
4)Authorizes the Department of Fish and Wildlife (DFW) to permit
the purchase, sale, possession or importation of ivory or
rhinoceros horn for educational or scientific purposes by a bona
fide educational or scientific institution, provided the
AB 96
Page 3
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.
5)Creates a presumption that ivory or rhinoceros horn possessed in
a retail or wholesale outlet constitutes possession with intent
to sell.
6)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.
AB 96
Page 4
7)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.
8)Authorizes the payment of a reward of up to $500 to any person
providing information leading to a conviction or entry of
judgment.
9)Provides that upon conviction or other entry of judgment, any
seized ivory or rhinoceros horn shall be forfeited.
10) Repeals existing provisions of law allowing possession
of elephant parts possessed or imported prior to June 1, 1977.
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.
2)Provides in uncodified language, that no provision of law shall
prohibit the possession with intent to sell, or sale of the dead
AB 96
Page 5
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.
FISCAL
EFFECT:1) According to the Assembly Appropriations Committee:
1)Increased one-time General Fund (GF) costs to DFW for staffing
start-up and equipment purchases of up to $1.7 million.
2)Increased on-going GF costs to DFW of over $1 million annually.
3)Unknown, potential increased revenue resulting from increased
penalties and enforcement.
Implementation of this bill will require DFW to lead enforcement
efforts, develop the forensic capacity to analyze evidence of
violations, and develop and implement administrative hearings and
civil penalties. It is unknown how many violations exist, and to
what extent the new law will result in further compliance or force
underground sales.
COMMENTS: 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
AB 96
Page 6
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 also
imperiled.
This bill addresses the loopholes in existing law that make
enforcing the ban on importation and sale of ivory difficult by:
1)Repealing the exemption for ivory possessed or imported prior to
1977 (limited exceptions for musical instruments and antiques
are retained);
2)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;
3)Adding express protection for rhinoceros;
4)Increasing penalties for violations.
AB 96
Page 7
Worldwide most elephant and rhinoceros populations are in serious
decline, and are classified as threatened, endangered or
critically endangered. The United States Fish and Wildlife
Service (USFWS) estimates the current African elephant population
is 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 to 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 species. 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. A subspecies of the
Javan Rhinoceros is already extinct, with the last known
individual poached in Vietnam in 2012. The other nominate
subspecies of the Javan Rhinoceros is now found only in one small
population of 35-40 individuals in West Java, Indonesia.
The Asian elephant was listed as endangered under the federal
Endangered Species Act (ESA) in 1976, and the African elephant was
AB 96
Page 8
listed as threatened under the ESA 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.
Surveys have identified Los Angeles and San Francisco as the
United States cities with the highest proportions of potentially
illegal ivory sales, and the largest ivory markets overall, after
New York City. A 2014 study 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
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.
According to the 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 shown that the
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
AB 96
Page 9
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, and news outlets have reported that ivory poaching is
becoming a growing source of funding for several terrorist
organizations.
In July 2013 President Obama issued an Executive Order committing
the United States 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 generally ban commercial imports of African elephant
ivory, with certain exceptions; permit Asian elephant ivory to be
imported under limited circumstances with proper documentation;
prohibit the export of elephant ivory from the United States. with
certain specified exceptions; and make it illegal to engage in
interstate or intrastate sales of ivory, again with exceptions.
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.
AB 96
Page 10
Opponents assert this bill will 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 National
Rifle Association argues that the exceptions in this bill for
antiques do not adequately address these concerns because owners
may not have the documentation to prove that an 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 the ban.
Analysis Prepared by:
Diane Colborn / W., P., & W. / (916) 319-2096 FN: 0000803