BILL ANALYSIS                                                                                                                                                                                                    Ó






           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                         AB 96|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 


                                   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  








                                                                      AB 96  
                                                                    Page  2


             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. 







                                                                      AB 96  
                                                                    Page  3



           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  







                                                                      AB 96  
                                                                    Page  4


                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  







                                                                      AB 96  
                                                                    Page  5


          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  







                                                                      AB 96  
                                                                    Page  6


                 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 







                                                                      AB 96  
                                                                    Page  7


          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)








                                                                      AB 96  
                                                                    Page  8



          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  







                                                                      AB 96  
                                                                    Page  9


          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








                                                                      AB 96  
                                                                    Page  10


          Prepared by:Katharine Moore / N.R. & W. / (916) 651-4116
          8/30/15 19:49:02


                                   ****  END  ****