BILL ANALYSIS                                                                                                                                                                                                    



                                                                        AB 96


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          ASSEMBLY THIRD READING


          AB  
          96 (Atkins)


          As Introduced  January 7, 2015


          Majority vote


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          |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


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          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  








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            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.









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          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  








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            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  








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          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.








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          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  








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          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  








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          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.










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          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