AB 96, as introduced, 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 prohibit a person from purchasing, selling, offering for sale, possessing with intent to sell, or importing 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 a civil penalty of up to $10,000 for a violation of this provision or any rule, regulation, or order adopted pursuant to this provision. The bill would authorize the department to permit 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 certain criteria are satisfied.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
The Legislature finds and declares all of the
3(a) There is worldwide concern regarding the plight of elephants
4and rhinoceroses, who are being poached at alarming rates -- an
5average of 96 elephants per day are killed in Africa.
6(b) Illegal poaching and wildlife trafficking is the fourth largest
7transnational crime and ivory helps fund the military operations
8of notorious terrorist groups. Smuggling gangs move tons of tusks
9to markets thousands of miles away.
10(c) International, federal, and state laws are all being
11strengthened to protect these iconic species from cruelty and
12extinction. The states of New York and New Jersey recently
13enacted strong prohibitions on intra-state ivory and rhinoceros
14horn commerce and the federal government has proposed
15strengthened ivory trade and import regulations.
16(d) California has prohibited the ivory trade since 1977, but a
17loophole has rendered the law unenforceable -- allowing illegal
18sales to flourish. San Francisco and Los Angeles have consistently
P3 1ranked among the top trading markets for illegal ivory in the United
Section 2022 is added to the Fish and Game Code, to
(a) For the purposes of this section, the following terms
6have the following meanings:
7(1) “Bona fide educational or scientific institution” means an
8institution that establishes through documentation either of the
10(A) Educational or scientific tax exemption, from the federal
11Internal Revenue Service or the institution’s national, state, or
12local tax authority.
13(B) Accreditation as an educational or scientific institution,
14from a qualified national, regional, state, or local authority for the
16(2) “Ivory” means a tooth or
tusk from a species of elephant,
17hippopotamus, mammoth, walrus, whale, or narwhal, or a piece
18thereof, whether raw ivory or worked ivory, and includes a product
19containing, or advertised as containing, ivory.
20(3) “Rhinoceros horn” means the horn, or a piece thereof, or a
21derivative such as powder, of a species of rhinoceros, and includes
22a product containing, or advertised as containing, a rhinoceros
24(4) “Sale” or “sell” means selling, trading, bartering for
25monetary or nonmonetary consideration, giving away in
26conjunction with a commercial transaction, or giving away at a
27location where a commercial transaction occurred at least once
28during the same or the previous calendar year.
29(5) “Total value” means either the fair market value or the actual
30price paid for ivory or rhinoceros horn, whichever is greater.
31(b) Except as provided in subdivisions (c) and (d), a person shall
32not purchase, sell, offer for sale, possess with intent to sell, or
33import with intent to sell ivory or rhinoceros horn.
34(c) The prohibitions set forth in subdivision (b) shall not apply
35to any of the following:
36(1) An employee or agent of the federal or state government
37undertaking a law enforcement activity pursuant to federal or state
38law, or a mandatory duty required by federal law.
P4 1(2) An activity that is authorized by an exemption or permit
2under federal law or that is otherwise expressly authorized under
4(3) Ivory or rhinoceros horn that is part of a musical instrument,
5including, but not limited to, a string or wind instrument or piano,
6and that is less than 20 percent by volume of the instrument, if the
7owner or seller provides historical documentation demonstrating
8provenance and showing the item was manufactured no later than
10(4) Ivory or rhinoceros horn that is part of a bona fide antique
11and that is less than five percent by volume of the antique, if the
12antique status is established by the owner or seller of the antique
13with historical documentation demonstrating provenance and
14showing the antique to be not less than 100 years old.
15(d) The department may permit the purchase, sale, offer for sale,
16possession with intent to sell, or importation with intent to sell
17ivory or rhinoceros horn for educational or scientific purposes by
18a bona fide educational or scientific institution if both of the
19following criteria are satisfied:
20(1) The purchase, sale, offer for sale, possession with intent to
21sell, or import with intent to sell the ivory or rhinoceros horn is
22not prohibited by federal law.
23(2) The ivory or rhinoceros horn was legally acquired before
24January 1, 1991, and was not subsequently transferred from one
25person to another for financial gain or profit after July 1, 2016.
26(e) It shall be presumptive evidence of possession with intent
27to sell ivory or rhinoceros horn if the ivory or rhinoceros horn is
28possessed in a retail or wholesale outlet commonly used for the
29buying or selling of similar items. This presumption shall not
30preclude a finding of intent to sell based on any other evidence
31that may serve to independently establish that intent.
32(f) For a violation of any
provision of this section, or any rule,
33regulation, or order adopted pursuant to this section, the following
34criminal penalties shall be imposed:
35(1) For a first conviction, where the total value of the ivory or
36rhinoceros horn is two hundred fifty dollars ($250) or less, the
37offense shall be a misdemeanor punishable by a fine of not less
38than one thousand dollars ($1,000), or more than ten thousand
39dollars ($10,000), imprisonment in the county jail for not more
40than 30 days, or by both the fine and imprisonment.
P5 1(2) For a first conviction, where the total value of the ivory or
2rhinoceros horn is more than two hundred fifty dollars ($250), the
3offense shall be a misdemeanor punishable by a fine of not less
4than five thousand dollars ($5,000), or more than forty thousand
5dollars ($40,000), imprisonment in the county jail for not more
6than one year, or by both the fine and imprisonment.
7(3) For a second or subsequent conviction, where the total value
8of the ivory or rhinoceros horn is two hundred fifty dollars ($250)
9or less, the offense shall be a misdemeanor punishable by a fine
10of not less than five thousand dollars ($5,000), or more than forty
11thousand dollars ($40,000), imprisonment in county jail for not
12more than one year, or by both the fine and imprisonment.
13(4) For a second or subsequent conviction, where the total value
14of the ivory or rhinoceros horn is more than two hundred fifty
15dollars ($250), the offense shall be a misdemeanor punishable by
16a fine of not less than ten thousand dollars ($10,000), or more than
17fifty thousand dollars ($50,000) or the amount equal to two times
18the total value of the ivory or rhinoceros horn involved in the
19violation, whichever is greater, imprisonment in county jail for
20not more than one year, or by both the fine and imprisonment.
21(g) In addition to, and separate from, any criminal penalty
22provided for under subdivision (f), a civil or administrative fine
23of up to ten thousand dollars ($10,000) may be imposed for a
24violation of any provision of this section, or any rule, regulation,
25or order adopted pursuant to this section. Civil penalties authorized
26pursuant to this subdivision may be imposed administratively by
27the department consistent with all of the following:
28(1) The chief of enforcement issues a complaint to any person
29or entity on which an administrative civil penalty may be imposed
30pursuant to this section. The complaint shall allege the act or failure
31to act that constitutes a violation, relevant facts, the provision of
32law authorizing the civil penalty to be imposed, and the proposed
34(2) The complaint and order is served by personal notice or
35certified mail and informs the party served that the party may
36request a hearing no later than 20 days from the date of service. If
37a hearing is requested, it shall be scheduled before the director or
38his or her designee, which designee shall not be the chief of
39enforcement issuing the complaint and order. A request for hearing
40shall contain a brief statement of the material facts the party claims
P6 1support his or her contention that no administrative penalty should
2be imposed or that an administrative penalty of a lesser amount is
3warranted. A party served with a complaint pursuant to this
4subdivision waives the right to a hearing if no hearing is requested
5within 20 days of service of the complaint, in which case the order
6imposing the administrative penalty shall become final.
7(3) The director, or his or her designee, shall control the nature
8and order of the hearing proceedings. Hearings shall be informal
9in nature, and need not be conducted according to the technical
10rules relating to evidence. The director or his or her designee shall
11issue a final order within 45 days of the close of the hearing. A
12final copy of the order shall be served by certified mail upon the
13party served with the complaint.
14(4) A party may obtain review of the final order by filing a
15petition for a writ of mandate with the superior court within 30
16days of the date of service of the final order. The administrative
17penalty shall be due and payable to the department within 60 days
18after the time to seek judicial review has expired or, where the
19party has not requested a hearing of the order, within 20 days after
20the order imposing an administrative penalty becomes final.
21(h) For any conviction or other entry of judgment for a violation
22of this section resulting in a fine, the department may, upon
23appropriation by the Legislature, pay one-half of the fine, but not
24to exceed five hundred dollars ($500), to any person giving
25information that led to the conviction or other entry of judgment.
26This reward shall not apply if the informant is a regular salaried
27law enforcement officer, or officer or agent of the department.
28(i) Upon conviction or other entry of judgment for a violation
29of this section, any seized ivory or rhinoceros horn shall be
30forfeited and, upon forfeiture, either maintained by the department
31for educational or training purposes, donated by the department
32to a bona fide educational or scientific institution, or destroyed.
33(j) This section does not preclude enforcement under Section
34653o of the Penal Code.
Section 5 of Chapter 692 of the Statutes of 1976 is
Section 1 of this act shall become operative June 1,
381977. No provision of law shall prohibit the possession with intent
39to sell, or sale of the dead body, or any part of product thereof, of
40any elephant prior to June 1, 1977, or the possession with intent
P7 1to sell or the sale of any such item on or after such date which was
2imported prior to the effective date of this act.
3The burden of proof to demonstrate that such item or items were
4imported prior to the effective date of this act shall be placed upon
The provisions of this act are severable. If any
7provision of this act or its application is held invalid, that invalidity
8shall not affect other provisions or applications that can be given
9effect without the invalid provision or application.
No reimbursement is required by this act pursuant to
11Section 6 of Article XIII B of the California Constitution because
12the only costs that may be incurred by a local agency or school
13district will be incurred because this act creates a new crime or
14infraction, eliminates a crime or infraction, or changes the penalty
15for a crime or infraction, within the meaning of Section 17556 of
16the Government Code, or changes the definition of a crime within
17the meaning of Section 6 of Article XIII B of the California
This act shall become operative on July 1, 2016.