BILL ANALYSIS                                                                                                                                                                                                    



                                                                      AB 96


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          96 (Atkins)


          As Amended  June 17, 2015


          Majority vote


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          Original Committee Reference:  W., P., & W.


          SUMMARY:  Makes it unlawful to purchase, sell, offer for sale,  
          possess with intent to sell, or import with intent to sell,  
          ivory or rhinoceros horn in California, with specified  
          exceptions.  Makes a violation of these prohibitions a  
          misdemeanor, subject to both criminal and administrative  
          penalties.  


          The Senate amendments:


          1)Provide that possession of ivory or rhinoceros horn in a  
            retail or wholesale outlet commonly used for the buying or  
            selling of similar items is prima facie evidence of possession  
            with intent to sell, but that this evidence shall not preclude  
            a finding of intent to sell based on other evidence of intent.  










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          2)Clarifies the Department of Fish and Wildlife's (DFW's)  
            authority to impose administrative penalties for violations,  
            and provides that administrative penalties shall be deposited  
            in the Fish and Game Preservation Fund and used for law  
            enforcement purposes upon appropriation of the Legislature.


          3)Authorizes half of a fine, but not to exceed $500, imposed by  
            a court for a violation of this bill to be paid to a person  
            giving information leading to a conviction or judgment.


          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, for each violation.


          2)Provides in uncodified language, that no provision of law  
            shall prohibit the possession with intent to sell, or sale of  
            the dead 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:  According to the Senate Appropriations  
          Committee:


          1)Minor and absorbable costs to the Fish and Game Preservation  
            Fund (special/General Fund) for the Department of Fish and  








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            Wildlife (DFW) to update regulations.


          2)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 DFW for  
            enforcement.  These costs may be at least partially offset by  
            criminal and civil penalties.


          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 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.  In addition, the current  
          law in California makes no reference to rhinoceros which are  
          poached for their horns and are also imperiled.  This bill  
          addresses the loopholes in existing law that make enforcing the  
          ban on importation and sale of ivory difficult by:  a) repealing  
          the exemption for ivory possessed or imported prior to 1977  
          (limited exceptions for musical instruments and antiques are  
          retained); b) 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; c) adding  
          express protection for rhinoceros; and d) increasing penalties  
          for violations.


          The Senate amendments make mostly minor changes relating to  
          penalties and enforcement. 


          Worldwide most elephant and rhinoceros populations are in  
          serious decline, and are classified as threatened, endangered or  
          critically endangered.  The United States (U.S.) is the second  
          largest market for ivory in the world, after China. California  
          provides the second largest market in the U.S. after New York.   








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          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 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 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 imperiled elephant populations.  Involvement of  
          transnational organized crime operations in the illicit ivory  
          trade has also 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 and the Lord's Resistance Army in Uganda, and possibly  
          including terrorist groups in Somalia.


          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.  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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          The National Rifle Association (NRA) and California Rifle and  
          Pistol Association continue to oppose this bill because they  
          believe it would 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 NRA 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 the 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: 0001758