## SECTION-BY-SECTION ANALYSIS

## 

## *Global Changes.*

Throughout the bill:

-   All references to "Administrator" have been changed to "Secretary"
    to reference the Secretary of Commerce.[^1]

-   With the exception of those sections specifically dealing with
    response to damages, all references to "coral reefs" have been
    changed to reference "coral reef ecosystems." This change clarifies
    that most activities under the CRCA are conducted with respect to
    the larger ecosystem.

## *Section 1. Short Title and References.* 

This section of the bill cites the short title as the "Coral Reef
Ecosystem Conservation Amendments Act of 2007," and establishes that,
unless otherwise noted, references to amendments or repeal of a section
or other provision are to be considered to be made to a section or
provision of the Coral Reef Conservation Act of 2000 (Public Law
106-562; 16 U.S.C. §§ 6401 *et seq*.).

*Section 2. Redesignations.*

This section also provides for the redesignation of sections of the
original Act, up front, to prevent any confusion.

*Section 3. Findings and Purposes.*

This section amends section 202 of the CRCA to provide background
information and support for the protection of coral reef ecosystems by
adding a new subsection (a) listing six specific findings describing the
value of such ecosystems. A new purpose is added to subsection (b) to
clarify the additional focus of the program on response to damages
(changes proposed by section 9 of this bill).

*Section 4. National Coral Reef Action Strategy.*

This section is amended to require the Secretary of Commerce to consult
with the U.S. Coral Reef Task Force, in developing the National Coral
Reef Action Strategy.

*Section 5. Coral Reef Conservation Program.*

This section amends section 204 of the CRCA to clarify the focus of the
grants program.

Subsection (f), as redesignated, is amended by clarifying that
activities funded by grants will enhance coral reef ecosystems both
nationally and internationally and by adding two additional focus areas:

Due to the increasing prevalence of coral disease and bleaching events
it is important to focus on these issues with explicit language.
Bleaching is added to paragraph (4) to

-   emphasize that it is one of the impacts on corals we wish to better
    understand. Responding to both coral disease and bleaching events is
    also added as a new focus in paragraph (10).

-   Adding a focus on increasing understanding of the function of coral
    reef ecosystems as protection for coastal communities in paragraph
    (6). Coral reefs have been reported to provide coastal protection
    from natural disasters (for example, following the Indian Ocean
    tsunami, December 2004). Monitoring would provide more information
    on this function of coral reef ecosystems.

*Section 6. Coral Reef Conservation Fund.*

This section amends section 205 of the CRCA by broadening the authority
to enter into agreements with multiple non-profit organizations. The
current language only provides the authority to partner with one
non-profit organization for the purpose of maintaining the Coral Reef
Conservation Fund. This expanded authority will increase our flexibility
in working with external partners, and strengthen those partnerships,
for the purposes of promoting coral reef ecosystem conservation.

*Section 7. Agreements.*

This section would allow the Coral Reef Conservation Program to enter
into a broad range of partnerships to undertake coral reef conservation
efforts.

Subsection (a) permits the Secretary to enter into and perform
contracts, leases, grants, and cooperative agreements, to carry out the
purposes of the Act.

Subsection (b) permits the use, with consent, of land, services,
equipment, personnel, and facilities. Such use could occur on a
reimbursable or non-reimbursable basis.

Subsection (c) provides the Secretary the authority to apply for,
accept, and use grants or other

financial assistance.

## *Section 8. Emergency Assistance.*

This section amends section 207 of the CRCA, as redesignated, to allow
NOAA to more broadly provide assistance to State, local and territorial
governments in emergency situations. This change is important because
grants are not an efficient funding mechanism for emergency response,
due to the time required for the processing and awarding of grants.
Assistance is to be provided in cooperation with the Federal Emergency
Management Agency, as appropriate.

Section 9. National Program.

This section amends section 208 of the CRCA, as redesignated, to clarify
the geographic focus of the national program, to include a focus on
socioeconomic research, and to provide a mechanism for funding emergency
response, stabilization, and restoration activities.

Subsection (a), as amended, specifies a focus on conducting national
program activities with local, regional, or international programs and
partners, as appropriate. This cooperation was previously only specified
in paragraph (b)(5), as amended, regarding cooperative conservation and
management, but should be applicable to all activities.

Subsection (b) expands authorized activities under the national program:

-   Paragraph (1) is amended to clarify that research conducted includes
    socioeconomic as well as scientific research.

-   Paragraph (3) is amended to clarify that NOAA can directly remove
    abandoned fishing gear, marine debris, and abandoned vessels as well
    as assist States.

-   Paragraph (4) authorizes the additional activity of responding to
    incidents and events that threaten and damage coral reef ecosystems,
    including disease and bleaching.

-   Paragraph (6) authorizes archiving, management and distribution of
    data sets and providing coral reef ecosystem assessments and
    services to the general public.

Subsection (c) is added to provide guidelines for long-term stewardship
of environmental data, products and information.

Subsection (d) is added to establish an account to provide for emergency
response, stabilization, and restoration activities. The money contained
in this account will allow the Government to immediately respond to
unforeseen, emergency events. This emergency funding is necessary to pay
for work that needs to begin before we are able to determine liability
and recover funds through damage assessment.

*Section 10. Prohibited Activities.*

This section is one of six new sections (209-214), which are proposed
for inclusion in the CRCA to provide a range of tools to allow for the
response to damages to coral reefs.

This section proposes a new Section 209 in the CRCA, which establishes
prohibited activities pertaining to coral reefs and provides specific
exceptions to those prohibitions. This section allows the Secretary to
address and reduce the occurrence of activities that cause damage to
coral reefs. The provisions in this section do not affect federal, state
or local laws or regulations providing protection to coral reefs.

Subsection (a) prohibits any person from destroying, causing the loss
of, or injuring any coral reef or component thereof with appropriate
exceptions.

-   Paragraph (1) excludes destruction, loss or injury caused by the use
    of fishing gear in a manner not prohibited under the
    Magnuson-Stevens Fishery Conservation and Management Act, or other
    federal or State law.

-   Paragraph (2) excludes destruction, loss or injury caused by an
    activity authorized by federal or State law, including, but not
    limited to lawful discharges from vessels of graywater, cooling
    water, engine exhaust, ballast water and sewage from marine
    sanitation devices; provided such activity does not include vessel
    groundings, vessel scrapings, anchor damage, excavation not
    authorized by federal or State permit, or similar activities.

-   Paragraph (3) excludes destruction, loss or injury that is the
    necessary result of *bona fide* marine scientific research, provided
    that it does not include excessive sampling or collecting, vessel
    groundings, vessel scrapings, anchor damage, excavation, or similar
    activities.

-   Paragraph (4) excludes destruction, loss or injury caused by a
    Federal Government agency responding to emergencies that pose a
    threat to human health or safety, the marine environment, or
    national security, or an activity necessary for law enforcement or
    search and rescue. The paragraph requires that any such destruction,
    loss or injury could not have been reasonably avoided.

Subsection (b) makes it unlawful to interfere with the enforcement of
the CRCA such as refusing to permit an authorized officer to conduct a
search or inspection, resisting an authorized officer, or submitting
false information in connection with the enforcement of the CRCA.

Subsection (c) makes it unlawful to violate any provision of the CRCA or
any permit or regulation issued pursuant to the CRCA.

*Section 11. Destruction of Coral Reefs.*

This section proposes a new section 210, which establishes liability for
damage to coral reefs resulting from the conduct of the prohibited
activities listed in section 209. This section provides a mechanism to
recover response costs and damages from parties responsible for damages
to coral reef ecosystems (e.g., from ship groundings) in order to assess
the damages and undertake restoration activities.

Subsection (a) includes the following provisions to establish liability:

-   Paragraph (1) makes anyone who destroys, causes the loss of or
    injures a coral reef, or creates an imminent risk thereof, jointly
    and severally liable for response costs and damages; costs of vessel
    seizure, forfeiture, storage, and disposal; and interest.

-   Paragraph (2) makes any vessels used to destroy, cause the loss of,
    or injure coral reefs liable in rem for response costs, damages,
    seizure, forfeiture, storage, and disposal, and interest.

-   Paragraph (3) provides defenses for an act of God, an act of war, or
    an act or omission of a third party.

-   Paragraph (4) states that there are no limits to liability.

Subsection (b) provides authority for response actions and damage
assessment, including actions to prevent or minimize the destruction,
loss of, or injury to coral reefs or the risk of these impacts. This
section also requires consultation with States regarding damage
assessment within State waters and stipulates that there will be no
double recovery for the same incident.

Subsection (c) allows for civil judicial actions to recover response
costs and damages and specifies venue.

Subsection (d) directs that amounts recovered are to be held in accounts
in the Damage Assessment Restoration Revolving Fund, or the Natural
Resources Damage Assessment Fund, and used for response costs and
damages. These amounts are to be used to reimburse the Secretary of
Commerce, the Secretary of the Interior, or any State or federal agency
that conducted response actions, seizure, forfeiture, storage, or
disposal, and secondly for restoration and monitoring of coral reefs or
to minimize or prevent threats of equivalent injury. Thus, funds from
the Emergency Response, Stabilization and Restoration Account expended
pursuant to proposed section 208(d) may be reimbursed with funds
recovered pursuant to this section.

Subsection (e) provides a statute of limitations of 3 years.

Subsection (f) stipulates that if the activities of the United States
Government destroy, cause the loss of, or injure coral reefs, the
cognizant party shall undertake response and restoration activities, in
coordination with the Secretary.

*Section 12. Enforcement .*

This section proposes a new section 211, which is added to provide for
the enforcement of the CRCA, and includes the following:

Subsection (a) requires the Secretary to conduct enforcement activities
to carry out the provisions of the CRCA.

Subsection (b) specifies that any officer authorized to enforce the CRCA
may search and seize any vessel suspected of violation of the CRCA;
seize any coral reef or component thereof taken or retained in violation
of the CRCA; seize any evidence of violation of the CRCA; execute a
warrant; and arrest any person if there is reasonable cause to believe
they have committed an act prohibited by section 209.

Subsection (c) provides authority to assess civil administrative
penalties of not more than \$200,000 for each violation and civil
judicial penalties of not more than \$250,000 per violation. Such civil
penalties can be assessed in addition to response costs and damages
pursuant to section 210. The Secretary always has prosecutorial
discretion to use the most appropriate vehicle(s) to penalize a
responsible party. This subsection also provides for permit sanctions
for violations of the CRCA, or any regulations promulgated or permit
issued thereunder, including revocation of the permit.

Subsection (d) provides authority for criminal and civil forfeiture of
any vessel, equipment, stores, cargo, or other item used in connection
with a violation of the CRCA. It also describes how customs laws will be
applied to forfeiture and establishes a presumption that any coral reef
component found on board a seized vessel was acquired in violation of
the Act.

Subsection (e) provides that persons assessed civil penalties may also
be liable for the costs of storage, care and maintenance of seized
property.

Subsection (f) specifies how civil penalties and costs imposed under
this section shall be used. The funds shall be placed into an account to
be available until expended. Amounts received for forfeitures and
related costs shall be used to pay costs incurred by the Secretary.
Civil penalties shall be used to stabilize, restore or manage the coral
reef with respect to which the violation occurred; reimburse funds used
from the Emergency Response, Stabilization and Restoration Account or
other account; conduct monitoring and enforcement activities; conduct
research on techniques to stabilize and restore coral reefs; conduct
activities that prevent or reduce the likelihood of future damage to
coral reefs; stabilize, restore or manage any other coral reefs; or pay
a reward.

Subsection (g) provides authority to assess criminal penalties for
violations of new section 209 or interference with enforcement of new
section 209. Prosecutorial discretion will be used in implementing this
subsection.

Subsection (h) provides the ability to obtain a subpoena requiring the
attendance and testimony of witnesses, and the provision of relevant
papers, books, electronic files, and documents.

Subsection (i) specifies that the CRCA, as amended, does not limit the
Coast Guard's authority.

Subsection (j) provides for injunctive relief where any person is
alleged to be in violation of the CRCA, as amended.

Subsection (k) states that the CRCA, as amended, would apply and be
enforceable in the internal waters and territorial sea of the United
States, the U.S. Exclusive Economic Zone, and on the continental shelf,
consistent with international law.

Subsection (l) provides for nationwide service of process.

Subsection (m) establishes the appropriate venue for civil actions.

Sections 209, 210, and 211 are meant to provide the Government the
ability to recover for damages to coral reefs and enforce the
prohibitions found in section 209 without creating an unduly broad array
of covered activities. Examples of covered activities include: (1)
vessel groundings, (2) dropped or dragged anchors and anchor chains, and
(3) use of explosives that cause damage to coral reefs. In addition to
the exceptions provided in sections 209(a)(1)-(3), examples of
activities that would not be covered include: (1) incidental contact by
divers, snorkelers and swimmers, and (2) contact between recreational
fishing gear and coral reefs that causes damage. In order to prevail in
an action brought under section 210 or section 211, the government would
be required to show that an activity caused damage to coral reefs.

*Section 13. Permits.*

This section proposes a new section 212, which provides for
establishment of a permit program to provide additional flexibility in
implementation of the CRCA. Given the explicit exemptions to the
prohibitions, it is not anticipated that an extensive permit program
would be instituted. Instead, individual permits may be required under
very specialized circumstances, where a specific, otherwise prohibited
activity may be deemed to be advantageous. This section specifically
provides the following:

Subsection (a) provides the authority to establish a permit process to
allow for activities otherwise prohibited by new section 209.

Subsection (b) provides findings that must be made by the Secretary in
order to issue a permit. This subsection requires that the activity to
be conducted is compatible with the purposes in section 202(b) of the
bill, the activity conforms to the provisions of all other laws and
regulations, and that the injury to corals cannot be avoided. This is
intended to provide guidance as to the limited nature of the permits
that might be issued.

Subsection (c) allows the Secretary to condition any permits issued.
This allows the Government to carefully control those activities it
permits.

Subsection (d) provides for the assessment and collection of fees. It
also allows for the assessment of fees for the cost of processing
applications and, if approved, for administering the permit. Amounts
collected may be used for issuing and administering permits and for
expenses of the Coral Reef Conservation Program.

Subsection (e) establishes that no permit is needed for fishing
activities not prohibited by the new section 209.

Provided no damage to coral reefs is intended, vessel operators and
owners would not be required to obtain a permit to operate in close
proximity to coral reefs.

*Section 14. Coordination with States and Territories.*

This section proposes a new section 213, which clarifies how the
Secretary will work in cooperation with States.

Subsection (a) allows for written agreements between the Secretary and
the State regarding recovery for destroyed, lost, or injured coral
reefs.

Subsection (b) allows for amendments to existing enforcement agreements.

*Section 15. Regulations.*

This section proposes a new section 214, which adds explicit authority
to issue regulations to carry out the CRCA. This provides the Secretary
the flexibility to further clarify the provisions of the CRCA through
regulation, if needed. This section likewise provides that the CRCA and
any regulations promulgated thereunder shall be applied and enforced in
a manner consistent with international law.

*Section 16. Effectiveness Report.*

This section amends section 215, as redesignated, of the CRCA to modify
the current reporting requirement so that the report reflects all U.S.
Coral Reef Task Force activities. The requirement for the report on the
grant program is also removed, as this report was only required to be
submitted one time.

*Section 17. Authorization of Appropriations.*

This section amends section 216, as redesignated, of the CRCA to
increase appropriations to the FY 2008 President's Budget Request by
authorizing \$25,797,000 in fiscal year 2008, and such sums as may be
necessary in each of fiscal years 2009-2012. Not more than 10% is to be
used for program administration and overhead. The allocation of spending
to carry out the provisions of the CRCA, as amended, are left to the
discretion of the Secretary.

*Section 18. Definitions.*

This section amends section 217, as redesignated, of the CRCA to clarify
the scope and meaning of several key terms central to the mission and
fundamental purposes of the Program. It also adds a number of new
definitions. Specific changes include:

-   Removing the definition for "Administrator" in paragraph (1), as
    this term is not used in the revised Act.

-   Adding a definition for "biodiversity," a term that is added in
    several places in the Act.

-   Revising the list of species under the definition of "coral" in
    paragraph (3), to accurately reflect the appropriate species.

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-   Revising the definition of "coral reef" in paragraph (4), to
    encompass the hard, skeletal structure, associated sessile
    organisms, and adjacent or associated seagrasses. This definition is
    used only in the context of the damage response sections of the
    bill, to limit the applicability of the CRCA's liability and
    response provisions to this structure and these organisms. The
    liability and response provisions are not intended to apply to the
    entire coral reef ecosystem.

-   Revising the definition of "coral reef ecosystem" in paragraph (6)
    to more accurately describe the ecosystem.

-   Adding definitions for "damages", "emergency actions", "Exclusive
    Economic Zone", 'Local Action Strategy", "person", "response cost",
    and "territorial sea." in paragraphs (8), (9), (10), (11),
    (12), (13) and (16), respectively. A new definition for "service",
    regarding the services coral reef ecosystems provide, is also added
    in paragraph (15).

-   A revised definition of "Secretary" is included in paragraph (14),
    to delineate responsibilities between the Secretaries of Commerce
    and the Interior.

*Section 19. Judicial Review.*

This section proposes a new section 218, which provides for judicial
review of final agency actions taken by the Secretary under the CRCA.
Review of final agency actions involving the assessment of civil
administrative penalties, or permit sanctions require a complaint to be
filed within thirty days of the date the final agency action was taken.
Review of all other final agency actions taken under the CRCA may only
be had in the appropriate U.S. Circuit Court of Appeals, and only if the
interested person files a petition within 120 days of the date the final
agency action is taken.

*Section 20. Department of the Interior Program.*

This section proposes a new section 219, which amends several existing
general authorities to specify that they apply to coral reefs, and
provides express authority for grants and technical assistance to the
territories for management and conservation of coral reef ecosystems.
These activities would be coordinated with those of other federal
agencies through the U.S. Coral Reef Task Force and directly with
individual agencies.

[^1]: Except, as outlined in revised Section 217(14), when "Secretary"
    refers to the Secretary of the Interior.