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