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 ****