BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
                             Senator Fran Pavley, Chair
                                2015 - 2016  Regular 

          Bill No:            AB 96           Hearing Date:    June 23,  
          2015
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          |Author:    |Atkins                 |           |                 |
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          |Version:   |June 17, 2015    Amended                             |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Katharine Moore                                      |
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             Subject:  Animal parts and products: importation or sale of  
                             ivory and rhinoceros horn.


          BACKGROUND AND EXISTING LAW
          Existing federal laws governing the wildlife importation include  
          the Lacey Act, the Endangered Species Act (ESA) and the African  
          Elephant Conservation Act.  The Lacey Act makes it a federal  
          offense to violate US state, tribal or foreign wildlife trade  
          statutes, treaties and regulations, and prohibits the import or  
          sale of wildlife taken in violation of any federal, state,  
          tribal of foreign wildlife law, among other provisions.  The ESA  
          seeks to conserve endangered and threatened species, and  
          prohibits a person from importing or obtaining any species that  
          is listed as threatened or endangered.  The ESA implements the  
          import and export regulations for wildlife noted in the text of  
          the Convention on International Trade in Endangered Species of  
          Wild Fauna and Flora (CITES, described below).  The African  
          Elephant Conservation Act restricts the trade in African  
          elephants and was motivated, in part, to help reduce poaching of  
          African elephant populations.

          Existing law makes it illegal to import into California for  
          commercial purposes with intent to sell, or to sell within the  
          state, the dead body of any elephant or any part of it.   
          Violations are punishable as a misdemeanor and are subject to a  
          fine of between $1,000 and $5,000, or imprisonment in county  
          jail for not more than six months, or both the fine and  
          imprisonment, for each violation.







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          Existing law provides in uncodified language that no provision  
          of law shall prohibit the possession with intent to sell, or  
          sale of the dead body of any elephant on or after June 1, 1977,  
          or any part of or product made from it, or the possession with  
          intent to sell or sale of any such item on or after such date  
          which was imported prior to January 1, 1977.

          Existing law further provides that the burden of proof to  
          demonstrate that the items described above were imported prior  
          to January 1, 1977 shall be placed upon the defendant.

          The US is the second largest market for ivory, such as from  
          elephant tusks, in the world after China.  California is the  
          second largest state market after New York.  (Both New York and  
          New Jersey enacted new laws in 2014 banning the ivory trade.)  
          According to the US Fish and Wildlife Service (USFWS), a  
          substantial amount of elephant ivory is illegally imported into  
          the US domestic market. 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 threatened elephant  
          populations.

          Previous surveys identified Los Angeles and San Francisco as the  
          US 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. Between 77% and 90% of the ivory  
          observed was determined in all likelihood to be illegal in Los  
          Angeles under California law and a corresponding 47% to 60% was  
          likely to also be illegal under federal law. In San Francisco,  
          the results were similar. The study also found that the  
          incidence of recently manufactured ivory had roughly doubled to  
          50% from 2006 to 2014.








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          Throughout the world, most elephant populations are in serious  
          decline and are classified as threatened, endangered or  
          critically endangered.  Illegal poaching for ivory is a  
          significant contributor to the decline.  Two species of  
          elephants - the African and Asian elephants - are generally  
          recognized, and male African elephants are the largest  
          terrestrial animal alive today (reaching a height of 13 feet and  
          a weight of over 15,000 pounds).  The current population of  
          elephants in Africa is uncertain.  The USFWS estimates the  
          population at about 600,000 which is a decline of about 50%  
          since the 1970s.  The population of Asian elephants is thought  
          to be less than 40,000 which also represents a significant  
          decline over the last 100 years.

          According to a study published in the August issue of the  
          Proceedings of the National Academy of Sciences - a  
          highly-regarded, peer-reviewed scientific journal - an estimated  
          100,000 African elephants were illegally slaughtered from 2010 -  
          2012.  Given these levels of poaching, some scientists believe  
          the population estimate today is lower than the 600,000 noted  
          above.

          Elephants live in matriarchal family groups, can live up to 70  
          years in the wild and are known to be intelligent animals -  
          similar to primates and whales.  They use multiple modes of  
          communication, appear to have self-awareness and exhibit  
          emotional responses to sick, dying and dead elephants.

          The Rhinocerotidae family includes five species of rhinoceros.   
          Two species - the White and Black Rhinoceros - are native to  
          Africa and three species - the Indian, Javan and Sumatran - are  
          native to South Asia. One of the two subspecies of White  
          Rhinoceros is endangered and Black Rhinoceros populations are  
          thought to be about 10% of historic levels.  The three Asian  
          species are all endangered.  Some Asian subspecies have already  
          gone extinct and one subspecies of the Javan Rhinoceros is now  
          only a small population of 35 - 40 animals in West Java.   
          Reports suggest up to 1000 rhinos are killed per year for their  
          horns which are used for traditional medicines in some cultures.

          PROPOSED LAW
          This bill would prohibit the importation or sale of ivory or  
          rhinoceros horn in California. Specifically, this bill would:








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             1)   Prohibit 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. Ivory means a tooth or tusk from a species of  
               elephant, hippopotamus, mammoth, mastodon, walrus, warthog,  
               whale, or narwhal, whether raw or worked, as specified. 

             2)   Exempt from the above prohibition are 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. 
                  e)        The purchase, sale, offer for sale, possession  
                    with intent to sell or import with intent to sell  
                    ivory or rhinoceros horn for educational or scientific  
                    purposes, as specified, including that the item was  
                    legally acquired before January 1, 1991 and was not  
                    transferred for financial gain or profit after July 1,  
                    2016. 

             1)   Create a presumption that ivory or rhinoceros horn  
               possessed in a retail or wholesale outlet commonly used for  
               buying or selling of similar items is evidence of  
               possession with intent to sell, as specified. 

             2)   Authorize 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 between  
                    $1,000 and $10,000, imprisonment in county jail for  
                    not more than 30 days, or both the fine and  








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                    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 between  
                    $5,000 and $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 between $5,000 and $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 between $10,000 and $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. 

             3)   Authorize, in addition to any criminal penalties, an  
               administrative penalty of up to $10,000. The penalty may be  
               imposed by the Department of Fish and Wildlife  
               (department), subject to specified procedures, including  
               the right to request a hearing, and to petition for court  
               review of a final administrative order.  Administrative  
               penalties shall be used for law enforcement purposes by the  
               department. 

             4)   Authorize the payment by the court of a reward of up to  
               $500 to any person providing information leading to a  
               conviction or entry of judgment, as specified. 

             5)   Provide that upon conviction or other entry of judgment,  
               any seized ivory or rhinoceros horn shall be forfeited and  
               maintained by the department for educational or training  
               purposes, donated for education or research, or destroyed,  
               as specified. 

             6)   Repeal existing provisions of law allowing possession of  
               elephant parts possessed or imported prior to June 1, 1977.









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             7)   Provide that provisions of this bill are severable. 

             8)    Make 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. 

             9)    Define various terms for purposes of this bill. 

             10)   Delay the operative date of the bill until July 1,  
               2016.

          ARGUMENTS IN SUPPORT
          According to the author, "[o]ne of the most effective ways to  
          protect elephants and rhinos from extinction is to eliminate the  
          illegal market for poached ivory and rhino horn by prohibiting  
          their purchase and sale."

           "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."

          "On average, 96 elephants per day are brutally killed for their  
          ivory. [?] 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.  
          Elephants are known as a "keystone" species because their  
          presence is critical to habitat management and environmental  
          balance."

          "The sale of elephant ivory is also a known source of financing  
          for terrorist groups such as Boko Haram, which was responsible  
          for the kidnapping of 300 Nigerian school girls, among other  
          heinous acts."

          "California and the federal government have existing laws  
          banning the commercial sale of ivory and these laws have been on  
          the books since 1977 and 1989."









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          "However, both the federal and state laws have grandfathering  
          provisions that allow for the sale of "antique ivory" acquired  
          prior to the enactment of the ban.  These grandfathering  
          provisions make current law nearly impossible to enforce as  
          determining the age of ivory based on observation alone is very  
          difficult."


          ARGUMENTS IN OPPOSITION
          The National Rifle Association (NRA) writing in opposition  
          supports efforts to "stop poaching and the illegal trade" but  
          argue that "AB 96 would not contribute to that goal."  The NRA  
          argues that collectors "have legally purchased firearms that  
          incorporate ivory features for decades.  These include some of  
          American's most historically significant and collectible guns."   
          The NRA continues that exceptions in AB 96 for antiques do not  
          adequately address their 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 a 5% ivory content which  
          would exclude some weapons that were lawfully purchased prior to  
          the ban.  The NRA argues that this constitutes a taking of  
          property.

          Numerous individual scrimshaw artists, collectors, and dealers  
          wrote in opposition to AB 96.  (Scrimshaw is the name given to  
          scrollwork, engravings, and carvings done in bone or ivory.  
          Traditionally it refers to the handiwork created by whalers made  
          from harvested whales, although other sources of ivory or bone  
          may also be used.) Reasons cited to oppose vary, and include  
          loss of livelihood, a taking of property, mammoths and mastodons  
          are already extinct, existing federal and state restrictions on  
          the ivory trade are sufficient, existing alternative domestic  
          ivory stockpiles are sufficient and do not present a threat to  
          any species, scrimshaw is an uniquely American art form, fossil  
          ivory and new ivory are easily distinguishable, and other  
          countries are more responsible for the illegal ivory trade,  
          among others.
          
          COMMENTS
           Closing loopholes in existing law  .  This bill addresses  
          loopholes in existing law that make enforcing the ban on the  
          import and sale of ivory difficult.  It does this by repealing  
          the exemption for ivory possessed or imported prior to 1977,  








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          although limited exceptions for musical instruments and  
          antiques, as specified, are retained.  As noted above, the  
          currently legal trade in ivory has been shown to be a cover for  
          the illegal trade.  This bill also codifies the provision  
          placing the burden of proof on the defendant to prove the  
          limited exception for musical instruments and antiques applies.   
          Additionally, the bill adds explicit protection for rhinoceros  
          and increases penalties for violations.

           Fossil ivory is not readily-distinguishable from new ivory  .   
          Fossil ivory is visually indistinguishable in many instances  
          from elephant ivory and therefore creates an avenue for black  
          market ivory into California.  According to the author, articles  
          made from elephant ivory can be altered to resemble mammoth  
          ivory.  The articles are then labeled as "mammoth ivory" or  
          similar to escape detection.  While a trained person may be able  
          to distinguish between mammoth ivory and elephant ivory, most  
          enforcement agents do not have the appropriate skills to do so.   
          The USFWS' online ivory identification guide cautions that "an  
          examination of the carved ivory object by a trained scientist is  
          still necessary to obtain and provide identification of the  
          species source."

           Other states' 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.

           The illegal ivory trade may be a source of funding for terrorist  
          activities  . Involvement of transnational organized crime  
          operations in the illicit ivory trade has 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, the Lord's Resistance  
          Army in Uganda, and, possibly, terrorist groups in Somalia. 

           This bill does not appear to constitute a taking  .  The US  
          Supreme Court has disagreed that a law similar to this bill  
          amounts to a taking.  The only US Supreme Court case directly  
          addressing a takings challenge to wildlife protections laws is  
          Andrus v. Allard, 444 U.S. 51 (1979) which held that a law  
          prohibiting the commercial sale of legally acquired bird parts  








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          did not amount to a taking because, while the ban foreclosed the  
          most profitable use of the bird parts (sales), it still allowed  
          other economically beneficial uses, such as possession,  
          transport, donation and exhibition, as does this bill.   
          Additionally, AB 96 includes a delayed effective date which  
          would allow, for example, guns with ivory that do not meet the  
          exceptions to be sold until June 2016.  The recent shark fin ban  
          bill (AB 376, Fong, c. 524, Statutes of 2011) contained a  
          similar provision to allow restaurants to sell their shark fin  
          stocks.  That said, there will be economic disruption to those  
          who previously benefited from the ivory and rhinoceros horn  
          trade in California.

           Status of Federal efforts  . In addition to animal listings under  
          the federal ESA, including action as recent as the 2014  
          threatened listing of the southern population of the White  
          Rhinoceros, 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 in July  
          2013. 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.

           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. Importation of ivory for commercial  
          purposes has been banned under CITES since 1990. Wildlife  
          species of concern are listed under CITES in either Appendix I,  
          II, or 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.  








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          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. Rhinoceros are generally listed under Appendix I,  
          although some Southern White Rhinoceros subpopulations are  
          listed under Appendix II.  

          According to a recent report 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. The number of elephants poached  
          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 that CITES must address currently. 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, and clear indications  
          that organized criminal groups are also involved in the 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 as of  
          2013, the report warned some populations could go into decline  
          if the illegal killing escalates. The report concludes that  
          rhinoceros are facing a crisis that threatens to reverse the  
          conservation achievements of the last two decades if not  
          addressed.
          
          SUPPORT
          Humane Society of the United States (sponsor) 
          Natural Resources Defense Council (sponsor) 
          East Bay Zoological Society (sponsor) 
          American Federation of State, County and Municipal Employees 
          American Society for the Prevention of Cruelty to Animals 
          Animal Legal Defense Fund 
          Aquarium of the Bay 
          Asian Pacific Alliance for Wildlife & Sustainability
          Animals Asia
          Big Life Foundation 
          Bornean Sun Bear Conservation Centre
          Budongo Conservation Field Station 
          California Academy of Sciences 








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          California Association of Zoos and Aquariums 
          California Commission on Asian Pacific Islander American Affairs  

          California District Attorneys Association
          California League of Conservation Voters  
          California Wolf Center 
          City of Los Angeles 
          City of Oakland 
          United States Representatives Davis, Honda, Garamendi, Huffman,  
          Lowenthal, Lieu, DeSaulnier 
          Defenders of Wildlife 
          Enough Project
          Earth Island Institute 
          Humane Society Veterinary Medical Association 
          International Fund for Animal Welfare
          Los Angeles Mayor Eric Garcetti 
          Lubee Bat Conservancy 
          March for Elephants 
          Monterey Bay Aquarium
          The Nature Conservancy 
          New Nature Foundation
          Performing Animal Welfare Society  
          San Francisco Board of Supervisors 
          San Francisco Commission of Animal Control and Welfare 
          San Francisco SCPA 
          Sea World San Diego 
          Sierra Club California 
          WildAid
          Wildlife Alive
          Wildlife Conservation Society 
          United States Senator Diane Feinstein 
          Relief International 
          Resolve LRA Crisis Initiative 
          Uganda Carnivore Program 
          Utopia Scientific
          Ewaso Lions
          Two Individuals 
           
          OPPOSITION
          California Rifle and Pistol Association 
          California Sportsman's Lobby Inc. 
          Crossroads of the West Gun Shows 
          Ivory Educational Institute
          National Rifle Association 








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          National Shooting Sports Foundation, Inc. 
          Outdoor Sportsmen's Coalition of California
          Robert Cullen, Mayor, King City
          Safari Club International
          Scrimshaw Gallery
          Ten Individuals


          
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