Bill Text: CA AB96 | 2015-2016 | Regular Session | Chaptered


Bill Title: Animal parts and products: importation or sale of ivory and rhinoceros horn.

Spectrum: Moderate Partisan Bill (Democrat 18-2)

Status: (Passed) 2015-10-04 - Chaptered by Secretary of State - Chapter 475, Statutes of 2015. [AB96 Detail]

Download: California-2015-AB96-Chaptered.html
BILL NUMBER: AB 96	CHAPTERED
	BILL TEXT

	CHAPTER  475
	FILED WITH SECRETARY OF STATE  OCTOBER 4, 2015
	APPROVED BY GOVERNOR  OCTOBER 4, 2015
	PASSED THE SENATE  SEPTEMBER 2, 2015
	PASSED THE ASSEMBLY  SEPTEMBER 4, 2015
	AMENDED IN SENATE  JUNE 17, 2015

INTRODUCED BY   Assembly Member Atkins
   (Principal coauthor: Senator Lara)
   (Coauthors: Assembly Members Bloom, Bonta, Chiu, Dababneh, Gatto,
Levine, Low, Maienschein, McCarty, Rendon, Ting, Thurmond, Waldron,
and Williams)
   (Coauthors: Senators Allen, Hancock, Pan, and Pavley)

                        JANUARY 7, 2015

   An act to add Section 2022 to the Fish and Game Code, and to
repeal Section 5 of Chapter 692 of the Statutes of 1976, relating to
animal parts and products.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 96, Atkins. Animal parts and products: importation or sale of
ivory and rhinoceros horn.
   Existing law makes it a crime to import into the state for
commercial purposes, to possess with intent to sell, or to sell
within the state, the dead body, or any part or product thereof, of
an elephant. Existing law exempts the possession with intent to sell,
or sale of the dead body, or any part or product thereof, of any
elephant before June 1, 1977, or the possession with intent to sell
or the sale of any such item on or after June 1, 1977, if the item
was imported before January 1, 1977.
   This bill would delete this exemption. By changing the definition
of a crime, this bill would impose a state-mandated local program.
   This bill would make it unlawful to purchase, sell, offer for
sale, possess with intent to sell, or import with intent to sell
ivory or rhinoceros horn, except as specified, and would make this
prohibition enforceable by the Department of Fish and Wildlife. The
bill would make a violation of this provision or any rule,
regulation, or order adopted pursuant to this provision a misdemeanor
subject to specified criminal penalties. By creating a new crime,
the bill would impose a state-mandated local program. In addition to
the specified criminal penalties, the bill would authorize the
department to impose an administrative penalty of up to $10,000 for a
violation of this provision or any rule, regulation, or order
adopted pursuant to this provision.
   This bill would provide that the provisions of this bill are
severable.
   This bill would make these provisions operative on July 1, 2016.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature finds and declares all of the
following:
   (a) There is worldwide concern regarding the plight of elephants
and rhinoceroses, who are being poached at alarming rates -- an
average of 96 elephants per day are killed in Africa.
   (b) Illegal poaching and wildlife trafficking is the fourth
largest transnational crime and ivory helps fund the military
operations of notorious terrorist groups. Smuggling gangs move tons
of tusks to markets thousands of miles away.
   (c) International, federal, and state laws are all being
strengthened to protect these iconic species from cruelty and
extinction. The states of New York and New Jersey recently enacted
strong prohibitions on intrastate ivory and rhinoceros horn commerce
and the federal government has proposed strengthened ivory trade and
import regulations.
   (d) California has prohibited the ivory trade since 1977, but a
loophole has rendered the law unenforceable -- allowing illegal sales
to flourish. San Francisco and Los Angeles have consistently ranked
among the top trading markets for illegal ivory in the United States.

  SEC. 2.  Section 2022 is added to the Fish and Game Code, to read:
   2022.  (a) For the purposes of this section, the following terms
have the following meanings:
   (1) "Bona fide educational or scientific institution" means an
institution that establishes through documentation either of the
following:
   (A) Educational or scientific tax exemption, from the federal
Internal Revenue Service or the institution's national, state, or
local tax authority.
   (B) Accreditation as an educational or scientific institution,
from a qualified national, regional, state, or local authority for
the institution's location.
   (2) "Ivory" means a tooth or tusk from a species of elephant,
hippopotamus, mammoth, mastodon, walrus, warthog, whale, or narwhal,
or a piece thereof, whether raw ivory or worked ivory, and includes a
product containing, or advertised as containing, ivory.
   (3) "Rhinoceros horn" means the horn, or a piece thereof, or a
derivative such as powder, of a species of rhinoceros, and includes a
product containing, or advertised as containing, a rhinoceros horn.
   (4) "Sale" or "sell" means selling, trading, bartering for
monetary or nonmonetary consideration, giving away in conjunction
with a commercial transaction, or giving away at a location where a
commercial transaction occurred at least once during the same or the
previous calendar year.
   (5) "Total value" means either the fair market value or the actual
price paid for ivory or rhinoceros horn, whichever is greater.
   (b) Except as provided in subdivision (c), it is unlawful to
purchase, sell, offer for sale, possess with intent to sell, or
import with intent to sell ivory or rhinoceros horn.
   (c) The prohibitions set forth in subdivision (b) shall not apply
to any of the following:
   (1) An employee or agent of the federal or state government
undertaking a law enforcement activity pursuant to federal or state
law, or a mandatory duty required by federal law.
   (2) An activity that is authorized by an exemption or permit under
federal law or that is otherwise expressly authorized under federal
law.
   (3) Ivory or rhinoceros horn that is part of a musical instrument,
including, but not limited to, a string or wind instrument or piano,
and that is less than 20 percent by volume of the instrument, if the
owner or seller provides historical documentation demonstrating
provenance and showing the item was manufactured no later than 1975.
   (4) Ivory or rhinoceros horn that is part of a bona fide antique
and that is less than five percent by volume of the antique, if the
antique status is established by the owner or seller of the antique
with historical documentation demonstrating provenance and showing
the antique to be not less than 100 years old.
   (5) The purchase, sale, offer for sale, possession with intent to
sell, or importation with intent to sell ivory or rhinoceros horn for
educational or scientific purposes by a bona fide educational or
scientific institution if both of the following criteria are
satisfied:
   (A) The purchase, sale, offer for sale, possession with intent to
sell, or import with intent to sell the ivory or rhinoceros horn is
not prohibited by federal law.
   (B) The ivory or rhinoceros horn was legally acquired before
January 1, 1991, and was not subsequently transferred from one person
to another for financial gain or profit after July 1, 2016.
    (d) 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. This
evidence shall not preclude a finding of intent to sell based on any
other evidence that may serve to establish that intent independently
or in conjunction with this evidence.
   (e) For a violation of any provision of this section, or any rule,
regulation, or order adopted pursuant to this section, the following
criminal penalties shall be imposed:
   (1) For a first conviction, where the total value of the ivory or
rhinoceros horn is two hundred fifty dollars ($250) or less, the
offense shall be a misdemeanor punishable by a fine of not less than
one thousand dollars ($1,000), or more than ten thousand dollars
($10,000), imprisonment in the county jail for not more than 30 days,
or by both the fine and imprisonment.
   (2) For a first conviction, where the total value of the ivory or
rhinoceros horn is more than two hundred fifty dollars ($250), the
offense shall be a misdemeanor punishable by a fine of not less than
five thousand dollars ($5,000), or more than forty thousand dollars
($40,000), imprisonment in the county jail for not more than one
year, or by both the fine and imprisonment.
   (3) For a second or subsequent conviction, where the total value
of the ivory or rhinoceros horn is two hundred fifty dollars ($250)
or less, the offense shall be a misdemeanor punishable by a fine of
not less than five thousand dollars ($5,000), or more than forty
thousand dollars ($40,000), imprisonment in county jail for not more
than one year, or by both the fine and imprisonment.
   (4) For a second or subsequent conviction, where the total value
of the ivory or rhinoceros horn is more than two hundred fifty
dollars ($250), the offense shall be a misdemeanor punishable by a
fine of not less than ten thousand dollars ($10,000), or more than
fifty thousand dollars ($50,000) or the amount equal to two times the
total value of the ivory or rhinoceros horn involved in the
violation, whichever is greater, imprisonment in county jail for not
more than one year, or by both the fine and imprisonment.
   (f) In addition to, and separate from, any criminal penalty
provided for under subdivision (e), an administrative penalty of up
to ten thousand dollars ($10,000) may be imposed for a violation of
any provision of this section, or any rule, regulation, or order
adopted pursuant to this section. Penalties authorized pursuant to
this subdivision may be imposed by the department consistent with all
of the following:
   (1) The chief of enforcement issues a complaint to any person or
entity on which an administrative civil penalty may be imposed
pursuant to this section. The complaint shall allege the act or
failure to act that constitutes a violation, relevant facts, the
provision of law authorizing the administrative penalty to be
imposed, and the proposed penalty amount.
   (2) The complaint and order is served by personal notice or
certified mail and informs the party served that the party may
request a hearing no later than 20 days from the date of service. If
a hearing is requested, it shall be scheduled before the director or
his or her designee, which designee shall not be the chief of
enforcement issuing the complaint and order. A request for hearing
shall contain a brief statement of the material facts the party
claims support his or her contention that no administrative penalty
should be imposed or that an administrative penalty of a lesser
amount is warranted. A party served with a complaint pursuant to this
subdivision waives the right to a hearing if no hearing is requested
within 20 days of service of the complaint, in which case the order
imposing the administrative penalty shall become final.
   (3) The director, or his or her designee, shall control the nature
and order of the hearing proceedings. Hearings shall be informal in
nature, and need not be conducted according to the technical rules
relating to evidence. The director, or his or her designee, shall
issue a final order within 45 days of the close of the hearing. A
final copy of the order shall be served by certified mail upon the
party served with the complaint.
   (4) A party may obtain review of the final order by filing a
petition for a writ of mandate with the superior court within 30 days
of the date of service of the final order. The administrative
penalty shall be due and payable to the department within 60 days
after the time to seek judicial review has expired or, where the
party has not requested a hearing of the order, within 20 days after
the order imposing an administrative penalty becomes final.
   (g) For any conviction or other entry of judgment imposed by a
court for a violation of this section resulting in a fine, the court
may pay one-half of the fine, but not to exceed five hundred dollars
($500), to any person giving information that led to the conviction
or other entry of judgment. This reward shall not apply if the
informant is a regular salaried law enforcement officer, or officer
or agent of the department.
   (h) Upon conviction or other entry of judgment for a violation of
this section, any seized ivory or rhinoceros horn shall be forfeited
and, upon forfeiture, either maintained by the department for
educational or training purposes, donated by the department to a bona
fide educational or scientific institution, or destroyed.
   (i) Administrative penalties collected pursuant to this section
shall be deposited in the Fish and Game Preservation Fund and used
for law enforcement purposes upon appropriation by the Legislature.
   (j) This section does not preclude enforcement under Section 653o
of the Penal Code.
  SEC. 3.  Section 5 of Chapter 692 of the Statutes of 1976 is
repealed.
  SEC. 4.  The provisions of this act are severable. If any provision
of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
  SEC. 5.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
  SEC. 6.  This act shall become operative on July 1, 2016.
                                                              
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