BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 96|
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THIRD READING
Bill No: AB 96
Author: Atkins (D), et al.
Amended: 6/17/15 in Senate
Vote: 21
SENATE NATURAL RES. & WATER COMMITTEE: 7-2, 6/23/15
AYES: Pavley, Allen, Hertzberg, Hueso, Jackson, Monning, Wolk
NOES: Stone, Vidak
SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/27/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
ASSEMBLY FLOOR: 62-14, 6/2/15 - See last page for vote
SUBJECT: Animal parts and products: importation or sale of
ivory and rhinoceros horn
SOURCE: East Bay Zoological Society
Humane Society of the United States
Natural Resources Defense Council
DIGEST: This bill modifies and expands the prohibition of the
importation, sale, and purchasing of ivory and rhinoceros horn.
ANALYSIS:
Existing law:
1) Establishes at the federal level, laws governing wildlife
importation including the Lacey Act, the Endangered Species
Act (ESA) and the African Elephant Conservation Act. The
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Lacey Act makes it a federal offense to violate U.S. 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). The African Elephant
Conservation Act restricts the trade in African elephants and
was motivated, in part, to help reduce poaching of African
elephant populations.
2) 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.
3) 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.
4) Provides that the burden of proof is placed upon the
defendant to demonstrate that the items described in (3) were
imported prior to January 1, 1977.
This bill modifies and expands the prohibition on the
importation or sale of 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. 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.
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2) Exempts from the 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% 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.
3) Creates 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.
4) 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 between $1,000 and
$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 between $5,000 and
$40,000, imprisonment in county jail for not more than one
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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.
5) Authorizes, 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 and requirements.
6) Authorizes 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.
7) Provides 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.
8) Repeals existing provisions of law allowing possession of
elephant parts possessed or imported prior to June 1, 1977.
9) Makes relevant legislative findings and declarations,
defines various terms, and provides that provisions of this
bill are severable.
10)Delays the operative date of the bill until July 1, 2016.
Background
Throughout the world, most elephant populations are in serious
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decline and are classified as threatened, endangered or
critically endangered. Illegal poaching for ivory is a
significant contributor to the decline. The Rhinocerotidae
family includes five species of rhinoceros. Four of the five
species are listed as endangered and some subspecies are already
extinct. Reports suggest up to 1,000 rhinos are killed per year
for their horns which are used for traditional medicines in some
cultures.
The U.S. 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 U.S. Fish and Wildlife Service (USFWS), a
substantial amount of elephant ivory is illegally imported into
the U.S. 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. The USFWS advises that by significantly restricting
ivory trade in the U.S., 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
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 in over 100 businesses in Los Angeles and 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
there were similar findings in San Francisco. The study also
found that the incidence of recently manufactured ivory had
roughly doubled to 50% from 2006 to 2014.
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.
NOTE: For additional information, please see the Senate
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Natural Resources and Water Committee analysis.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
Minor and absorbable costs to the Fish and Game Preservation
Fund (special/General Fund) for the Department to update
regulations.
Unknown cost pressures, potentially up to $1.2 million
annually ongoing and $1 million in one-time costs, to the Fish
and Game Preservation Fund (special/General Fund) to the
Department for enforcement. These costs may be at least
partially offset by criminal and civil penalties.
SUPPORT: (Verified8/28/15)
East Bay Zoological Society (co-source)
Humane Society of the United States (co-source)
Natural Resources Defense Council (co-source)
American Federation of State, County and Municipal Employees
American Society for the Prevention of Cruelty to Animals
Animal Legal Defense Fund
Animals Asia
Aquarium of the Bay
Asian Pacific Alliance for Wildlife & Sustainability
Big Life Foundation
Bornean Sun Bear Conservation Centre
Budongo Conservation Field Station
California Academy of Sciences
California Association of Zoos and Aquariums
California Commission on Asian and Pacific Islander American
Affairs
California District Attorneys Association
California League of Conservation Voters
California Travel Association
California Wolf Center
Chelsea Clinton, the Clinton Foundation
City of Los Angeles
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City of Los Angeles, Mayor, Eric Garcetti
City of Oakland
Defenders of Wildlife
Enough Project
Ewaso Lions
Humane Society Veterinary Medical Association
International Fund for Animal Welfare
Lubee Bat Conservancy
March for Elephants
Monterey Bay Aquarium
New Nature Foundation
Oakland Zoo
Performing Animal Welfare Society
Relief Interational
Resolve LRA Crisis Initiative
San Francisco Board of Supervisors
San Francisco Commission of Animal Control and Welfare
San Francisco SPCA
SeaWorld San Diego
Sierra Club California
State Humane Association of California
The Nature Conservancy
U.S. House of Representatives, Member of Congress, Alan
Lowenthal
U.S. House of Representatives, Member of Congress, Jared Huffman
U.S. House of Representatives, Member of Congress, John
Garamendi
U.S. House of Representatives, Member of Congress, Mark
DeSaulnier
U.S. House of Representatives, Member of Congress, Michael Honda
U.S. House of Representatives, Member of Congress, Susan A.
Davis
U.S. House of Representatives, Member of Congress, Ted Lieu
U.S. Senate, Senator, Dianne Feinstein
Uganda Carnivore Program
Utopia Scientific
WildAid
Wildlife Alive
Wildlife Conservation Society
Numerous individuals
OPPOSITION: (Verified8/28/15)
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California Rifle and Pistol Association
California Sportsman's Lobby Inc.
Crossroads of the West Gun Shows
Ivory Education Institute
National Rifle Association
National Shooting Sports Foundation, Inc.
Outdoor Sportsmen's Coalition of California
Robert Cullen, Mayor, King City
Safari Club International
Scrimshaw Gallery
The Pearl Guys
Numerous individuals
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."
"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."
"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
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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 as it
would be difficult to meet the exception's requirements. 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.) 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.
ASSEMBLY FLOOR: 62-14, 6/2/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bloom, Bonilla,
Bonta, Brough, Brown, Burke, Calderon, Campos, Chau, Chiu,
Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman,
Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez,
Gonzalez, Gordon, Gray, Hadley, Roger Hernández, Holden,
Irwin, Jones-Sawyer, Levine, Lopez, Low, Maienschein, McCarty,
Medina, Melendez, Mullin, Nazarian, O'Donnell, Perea, Quirk,
Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth,
Mark Stone, Thurmond, Ting, Waldron, Weber, Wilk, Williams,
Wood, Atkins
NOES: Bigelow, Frazier, Beth Gaines, Gallagher, Grove, Harper,
Jones, Kim, Lackey, Mathis, Obernolte, Olsen, Patterson,
Wagner
NO VOTE RECORDED: Chang, Chávez, Linder, Mayes
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Prepared by:Katharine Moore / N.R. & W. / (916) 651-4116
8/30/15 19:49:02
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