BILL ANALYSIS Ó
AB 96
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
96 (Atkins)
As Amended June 17, 2015
Majority vote
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|ASSEMBLY: |62-14 |(June 2, 2015) |SENATE: |26-13 |(September 2, |
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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.
AB 96
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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