109TH CONGRESS

2D SESSION S. 2013

AN ACT

To amend the Marine Mammal Protection Act of 1972 to

implement the Agreement on the Conservation and Management of the Alaska-Chukotka Polar Bear Population.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘United States-Russia

5 Polar Bear Conservation and Management Act of 2005’’.
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1 SEC. 2. AMENDMENT OF MARINE MAMMAL PROTECTION

2 ACT OF 1972.

3 (a) IN GENERAL.—The Marine Mammal Protection

4 Act of 1972 (16 U.S.C. 1361 et seq.) is amended by add5 ing at the end thereof the following:

6 ‘‘TITLE V—ALASKA-CHUKOTKA

7 POLAR BEARS

8 ‘‘SEC. 501. DEFINITIONS.

9 ‘‘In this title:

10 ‘‘(1) AGREEMENT.—The term ‘Agreement’

11 means the Agreement Between the Government of

12 the United States of America and the Government

13 of the Russian Federation on the Conservation and

14 Management of the Alaska-Chukotka Polar Bear

15 Population, signed at Washington, D.C., on October

16 16, 2000.

17 ‘‘(2) ALASKA NANUUQ COMMISSION.—The term

18 ‘Alaska Nanuuq Commission’ means the Alaska Na19 tive entity, in existence on the date of enactment of

20 this Act, that represents all villages in the State of

21 Alaska that engage in the annual subsistence taking

22 of polar bears from the Alaska-Chukotka population

23 and any successor entity.

24 ‘‘(3) IMPORT.—The term ‘import’ means to

25 land on, bring into, or introduce into, or attempt to

26 land on, bring into, or introduce into, any place sub-
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1 ject to the jurisdiction of the United States, without

2 regard to whether the landing, bringing, or introduc3 tion constitutes an importation within the meaning

4 of the customs laws of the United States.

5 ‘‘(4) NATIVE PEOPLE.—The term ‘Native peo6 ple’ has the meaning given the term in the Agree7 ment.

8 ‘‘(5) POLAR BEAR PART OR PRODUCT.—The

9 term ‘part or product of a polar bear’ means any

10 polar bear part or product, including the gall bile

11 and gall bladder.

12 ‘‘(6) SECRETARY.—The term ‘Secretary’ means

13 the Secretary of the Interior.

14 ‘‘(7) TAKING.—The term ‘taking’ means hunt15 ing, capturing, or killing a polar bear.

16 ‘‘(8) UNITED STATES-RUSSIA POLAR BEAR COM17 MISSION.—The term ‘United States-Russia Polar

18 Bear Commission’ means the binational commission

19 established under article 8 of the Agreement.

20 ‘‘(9) UNITED STATES SECTION.—The term

21 ‘United States Section’ means the commissioners ap22 pointed by the President under section 505 of this

23 title.

24 ‘‘SEC. 502. PROHIBITIONS.

25 ‘‘(a) IN GENERAL.—It is unlawful for any person—
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1 ‘‘(1) to take any polar bear in violation of the

2 Agreement;

3 ‘‘(2) to take any polar bear in violation of any

4 annual taking limit or other restriction on the taking

5 of polar bears that is adopted by the United States6 Russia Polar Bear Commission pursuant to the

7 Agreement;

8 ‘‘(3) to import, export, possess, transport, sell,

9 receive, acquire, purchase, exchange, barter, or offer

10 to sell, exchange, or barter any polar bear, or any

11 part or product of a polar bear, that is taken in vio12 lation of the Agreement or any limit or restriction

13 on taking that is adopted by the United States-Rus14 sia Polar Bear Commission;

15 ‘‘(4) to import, export, possess, transport, sell,

16 receive, acquire, purchase, exchange, or barter, offer

17 to sell, exchange, or barter, polar bear gall bile or

18 a polar bear gall bladder;

19 ‘‘(5) to attempt to commit, solicit another per20 son to commit, or cause to be committed, any of21 fense under this subsection; or

22 ‘‘(6) to violate any regulation promulgated by

23 the Secretary to implement any of the prohibitions

24 established in this subsection.
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1 ‘‘(b) EXCEPTIONS.—For the purpose of forensic test2 ing or any other law enforcement purpose, a government

3 official may import a polar bear or any part or product

4 of a polar bear.

5 ‘‘SEC. 503. ADMINISTRATION AND ENFORCEMENT.

6 ‘‘(a) IN GENERAL.—The Secretary, acting through

7 the United States Fish and Wildlife Service, shall do all

8 things necessary and appropriate, including the promulga9 tion of regulations, to implement, enforce, and administer

10 the provisions of the Agreement on behalf of the United

11 States. The Secretary shall consult with the Secretary of

12 State, the Marine Mammal Commission, and the Alaska

13 Nanuuq Commission on matters involving the implementa14 tion of the Agreement. The Secretary may utilize by agree15 ment, with or without reimbursement, the personnel, serv16 ices, and facilities of any other Federal agency, any State

17 agency, or the Alaska Nanuuq Commission for purposes

18 of carrying out this title or the Agreement. Any person

19 authorized by the Secretary under this subsection to en20 force this title or the Agreement shall have the powers and

21 authorities that are enumerated in section 6(b) of the

22 Lacey Act Amendments of 1981 (16 U.S.C. 3375(b)).

23 ‘‘(b) FORFEITURE.—

24 ‘‘(1) REQUIREMENT.—
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1 ‘‘(A) IN GENERAL.—A polar bear, or any

2 part or product of a polar bear, that is (or at3 tempted to be) imported, exported, taken, pos4 sessed, transported, sold, received, acquired,

5 purchased, exchanged, or bartered or offered

6 for sale, exchange, or barter, or purchase, in

7 violation of this title, shall be subject to seizure

8 and forfeiture to the United States without any

9 showing that may be required for assessment of

10 a civil penalty or for criminal prosecution.

11 ‘‘(B) EQUIPMENT.—Each gun, trap, net,

12 or other equipment used, and any vessel, vehi13 cle, aircraft, or other means of transportation

14 used, to aid in the violation or attempted viola15 tion of this title shall be subject to forfeiture to

16 the United States upon conviction of a criminal

17 violation in accordance with subsection (e).

18 ‘‘(2) INSPECTION.—

19 ‘‘(A) IN GENERAL.—Any person authorized

20 by the Secretary, the Secretary of the Treasury,

21 the Secretary of Homeland Security, or the Sec22 retary of Commerce to enforce this title may—

23 ‘‘(i) detain and inspect any container,

24 including the contents of the container,
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1 and all accompanying documents, upon im2 portation or exportation of the container;

3 ‘‘(ii) search and, if the container is

4 found to contain a polar bear or part or

5 product of a polar bear, seize the package,

6 crate, or container, and any documentation

7 associated with it, with or without a war8 rant.

9 ‘‘(B) TREATMENT OF SEIZED MATE10 RIALS.—

11 ‘‘(i) IN GENERAL.—Except as pro12 vided in clause (ii), any polar bear, or any

13 part or product of a polar bear, seized

14 under this section shall be held by any per15 son authorized by the Secretary, the Sec16 retary of the Treasury, the Secretary of

17 Homeland Security, or the Secretary of

18 Commerce pending disposition of civil or

19 criminal proceedings, or the institution of

20 an action in rem for forfeiture of the polar

21 bear, part, or product, in accordance with

22 this subsection.

23 ‘‘(ii) BOND.—Subject to clause (iii),

24 in lieu of holding a polar bear or any part

25 or product of a polar bear described in
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1 clause (i), the Secretary may permit the

2 owner to post a bond or other surety satis3 factory to the Secretary.

4 ‘‘(iii) DISPOSAL.—Upon forfeiture of

5 any property to the United States under

6 this subsection, or the abandonment or

7 waiver of any claim to any such property,

8 the property shall be disposed of by the

9 Secretary in such a manner, consistent

10 with the purposes of this title, as the Sec11 retary shall by regulation prescribe.

12 ‘‘(3) APPLICABLE LAW.—

13 ‘‘(A) IN GENERAL.—Subject to subpara14 graph (B), the following provisions of law de15 scribed in subparagraph (B) shall apply to all

16 seizures and forfeitures carried out under this

17 title:

18 ‘‘(i) All provisions of law relating to

19 the seizure, forfeiture, and condemnation

20 of property for violation of the customs

21 laws.

22 ‘‘(ii) All provisions of law relating to

23 the disposition of seized or forfeited prop24 erty or the proceeds from the sale of that

25 property.
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1 ‘‘(iii) All provisions of law relating to

2 the remission or mitigation of that for3 feiture.

4 ‘‘(iv) Section 981 of title 18, United

5 States Code.

6 ‘‘(B) EXCEPTION.—All powers, rights, and

7 duties conferred or imposed by the customs

8 laws upon any officer or employee of the De9 partment of Treasury shall, for the purpose of

10 this title, be exercised or performed by—

11 ‘‘(i) the Secretary or the Secretary’s

12 designee; or

13 ‘‘(ii) such persons as the Secretary

14 may designate.

15 ‘‘(c) CIVIL PENALTIES.—

16 ‘‘(1) PENALTIES.—

17 ‘‘(A) IN GENERAL.—Any person who

18 knowingly engages in conduct prohibited by sec19 tion 502, or who in the exercise of due care

20 should know that the person is engaging in con21 duct prohibited by section 502, may be assessed

22 a civil penalty by the Secretary of not more

23 than $50,000 for each violation.

24 ‘‘(B) NOTICE AND OPPORTUNITY FOR

25 HEARING.—No penalty may be assessed against
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1 a person under this paragraph unless the per2 son is given notice and opportunity for a hear3 ing with respect to the violation for which the

4 penalty is assessed.

5 ‘‘(C) SEPARATE OFFENSES.—Each viola6 tion shall be a separate offense.

7 ‘‘(D) REMISSION AND MITIGATION.—A

8 civil penalty assessed under this paragraph may

9 be remitted or mitigated by the Secretary.

10 ‘‘(E) CIVIL ACTION.—Upon any failure by

11 a person to pay a civil penalty assessed under

12 this paragraph—

13 ‘‘(i) the Secretary may request the At14 torney General to bring a civil action in

15 the United States district court for any

16 district in which the person is found, re17 sides, or transacts business to collect the

18 penalty; and

19 ‘‘(ii) the court shall have jurisdiction

20 to hear and decide any such action.

21 ‘‘(F) STANDARD.—A court shall hear and

22 sustain a civil action by the Secretary under

23 subparagraph (E) if the civil action is sup24 ported by substantial evidence on the record

25 considered as a whole.
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1 ‘‘(2) PROCEDURE.—

2 ‘‘(A) IN GENERAL.—A hearing held during

3 proceedings for the assessment of a civil penalty

4 under paragraph (1) shall be conducted in ac5 cordance with section 554 of title 5, United

6 States Code.

7 ‘‘(B) SUBPOENAS.—The Secretary may

8 issue subpoenas for the attendance and testi9 mony of witnesses and the production of rel10 evant papers, books, and documents, and ad11 minister oaths.

12 ‘‘(C) REIMBURSEMENT OF WITNESSES.—A

13 witness summoned to appear in a proceeding

14 under this paragraph shall be paid the same

15 fees and mileage that are paid to witnesses in

16 the courts of the United States.

17 ‘‘(D) CONTUMACY.—In case of contumacy

18 or refusal to obey a subpoena served upon any

19 person under this paragraph—

20 ‘‘(i) the United States district court

21 for any district in which the person is

22 found, resides, or transacts business, upon

23 application by the United States and after

24 notice to the person, shall have jurisdiction

25 to issue an order requiring the person to
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1 appear and give testimony before the Sec2 retary, to appear and produce documents

3 before the Secretary, or both; and

4 ‘‘(ii) any failure to obey such an order

5 of the court may be punished by the court

6 as a contempt of the court.

7 ‘‘(d) CRIMINAL PENALTIES.—A person who know8 ingly violates section 502 shall be fined not more than

9 $100,000 for each such violation, imprisoned not more

10 than 1 year, or both.

11 ‘‘(e) DISTRICT COURT JURISDICTION.—

12 ‘‘(1) IN GENERAL.—The United States district

13 courts, including the courts specified in section 460

14 of title 28, United States Code, shall have jurisdic15 tion over any action arising under this title.

16 ‘‘(2) ALASKAN CASES.—Notwithstanding para17 graph (1), the United States District Court for the

18 district of Alaska shall have exclusive original juris19 diction of any action arising under this title for any

20 violation committed, or alleged to have been com21 mitted, in Alaska.

22 ‘‘(f) OTHER ENFORCEMENT.—The importation or ex23 portation of a polar bear, or any part or product of a polar

24 bear, that is taken, possessed, transported, sold, received,

25 acquired, purchased, exchanged, or bartered or offered for
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1 sale, exchange, or barter, or purchase, in violation of the

2 Agreement or any limitation or restriction of the United

3 States-Russia Polar Bear Commission shall be considered

4 to be transportation of wildlife for the purpose of section

5 3(a) of the Lacey Act Amendments of 1981 (16 U.S.C.

6 3372(a)).

7 ‘‘(g) REGULATIONS.—

8 ‘‘(1) IN GENERAL.—The Secretary shall pro9 mulgate such regulations as are necessary to carry

10 out this title and the Agreement.

11 ‘‘(2) ORDINANCES AND REGULATIONS.—If nec12 essary to carry out this title and the Agreement, and

13 to improve compliance with the annual taking limit

14 or other restriction on taking adopted by the United

15 States-Russia Polar Bear Commission and imple16 mented by the Secretary in accordance with this

17 title, the Secretary may promulgate regulations that

18 adopt any ordinance or regulation that restricts the

19 taking of polar bears for subsistence purposes if the

20 ordinance or regulation has been promulgated by the

21 Alaska Nanuuq Commission.

22 ‘‘(h) USE OF PENALTY AMOUNTS.—Amounts re23 ceived as penalties, fines, or forfeiture of property under

24 this section shall be used in accordance with section 6(d)
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1 of the Lacey Act Amendments of 1981 (16 U.S.C.

2 3375(d)).

3 ‘‘(i) SEVERABILITY.—If any provision of this title is,

4 for any reason, found to be invalid by a court of competent

5 jurisdiction, the judgment of the court—

6 ‘‘(1) shall not affect, impair, or invalidate the

7 remaining provisions of this title; and

8 ‘‘(2) shall instead be confined in its operation

9 to provision of the Act directly involved in the con10 troversy in which the judgment is rendered.

11 ‘‘SEC. 504. DESIGNATION AND APPOINTMENT OF MEMBERS

12 OF THE UNITED STATES SECTION OF THE

13 COMMISSION; COMPENSATION, TRAVEL EX14 PENSES, AND CLAIMS.

15 ‘‘(a) DESIGNATION AND APPOINTMENT.—

16 ‘‘(1) IN GENERAL.—The United States shall be

17 represented on the United States-Russia Polar Bear

18 Commission by 2 United States commissioners.

19 ‘‘(2) APPOINTMENT.—The United States com20 missioners shall be appointed by the President, after

21 taking into consideration the recommendations of—

22 ‘‘(A) the Secretary;

23 ‘‘(B) the Secretary of State;
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1 ‘‘(C) the Speaker of the House of Rep2 resentatives and the President pro tempore of

3 the Senate; and

4 ‘‘(D) the Alaska Nanuuq Commission.

5 ‘‘(3) QUALIFICATIONS.—With respect to the

6 United States commissioners appointed under this

7 subsection, in accordance with paragraph 2 of article

8 8 of the Agreement—

9 ‘‘(A) 1 United States commissioner shall

10 be an official of the Federal Government;

11 ‘‘(B) 1 United States commissioner shall

12 be a representative of the Native people of Alas13 ka, and, in particular, the Native people for

14 whom polar bears are an integral part of their

15 culture; and

16 ‘‘(C) both commissioners shall be knowl17 edgeable of, or have expertise in, polar bears.

18 ‘‘(4) SERVICE AND TERM.—Each United States

19 commissioner shall serve—

20 ‘‘(A) at the pleasure of the President; and

21 ‘‘(B) for an initial 4-year term and such

22 additional terms as the President shall deter23 mine.

24 ‘‘(5) VACANCIES.—
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1 ‘‘(A) IN GENERAL.—Any individual ap2 pointed to fill a vacancy occurring before the

3 expiration of any term of office of a United

4 States commissioner shall be appointed for the

5 remainder of that term.

6 ‘‘(B) MANNER.—Any vacancy on the

7 United States-Russia Polar Bear Commission

8 shall be filled in the same manner as the origi9 nal appointment.

10 ‘‘(b) ALTERNATE COMMISSIONERS.—

11 ‘‘(1) IN GENERAL.—The Secretary, in consulta12 tion with the Secretary of State, the Speaker of the

13 House of Representatives, the President pro tempore

14 of the Senate, and the Alaska Nanuuq Commission,

15 shall designate an alternate commissioner for each

16 member of the United States Section.

17 ‘‘(2) DUTIES.—In the absence of a commis18 sioner, an alternate commissioner may exercise all

19 functions of the commissioner at any meetings of the

20 United States-Russia Polar Bear Commission or of

21 the United States Section.

22 ‘‘(3) REAPPOINTMENT.—An alternate

23 commissioner—

24 ‘‘(A) shall be eligible for reappointment by

25 the President; and
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1 ‘‘(B) may attend all meetings of the

2 United States Section.

3 ‘‘(c) DUTIES.—The members of the United States

4 Section may carry out the functions and responsibilities

5 described in article 8 of the Agreement in accordance with

6 this title and the Agreement.

7 ‘‘(d) COMPENSATION AND EXPENSES.—

8 ‘‘(1) COMPENSATION.—A member of the United

9 States Section shall serve without compensation.

10 ‘‘(2) TRAVEL EXPENSES.—A member of the

11 United States Section shall be allowed travel ex12 penses, including per diem in lieu of subsistence, at

13 rates authorized for an employee of an agency under

14 subchapter I of chapter 57 of title 5, United States

15 Code, while away from the home or regular place of

16 business of the member in the performance of the

17 duties of the United States-Russia Polar Bear Com18 mission.

19 ‘‘(e) AGENCY DESIGNATION.—The United States

20 Section shall, for the purpose of title 28, United States

21 Code, relating to claims against the United States and tort

22 claims procedure, be considered to be a Federal agency.
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1 ‘‘SEC. 505. VOTES TAKEN BY THE UNITED STATES SECTION

2 ON MATTERS BEFORE THE COMMISSION.

3 In accordance with paragraph 3 of article 8 of the

4 Agreement, the United States Section shall vote on any

5 issue before the United States-Russia Polar Bear Commis6 sion only if there is no disagreement between the 2 United

7 States commissioners regarding the vote.

8 ‘‘SEC. 506. IMPLEMENTATION OF ACTIONS TAKEN BY THE

9 COMMISSION.

10 ‘‘(a) IN GENERAL.—The Secretary shall take all nec11 essary and appropriate actions to implement the decisions

12 and determinations of the United States-Russia Polar

13 Bear Commission under paragraph 7 of article 8 of the

14 Agreement.

15 ‘‘(b) TAKING LIMITATION.—Not later than 60 days

16 after the date on which the Secretary receives notice of

17 the determination of the United States-Russia Polar Bear

18 Commission of an annual taking limit, or of the adoption

19 by the United States-Russia Polar Bear Commission of

20 other restriction on the taking of polar bears for subsist21 ence purposes, the Secretary shall publish a notice in the

22 Federal Register announcing the determination or restric23 tion.
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1 ‘‘SEC. 507. COOPERATIVE MANAGEMENT AGREEMENT; AU2 THORITY TO DELEGATE ENFORCEMENT AU3 THORITY.

4 ‘‘(a) IN GENERAL.—The Secretary, acting through

5 the United States Fish and Wildlife Service, may share

6 authority under this title for the management of the tak7 ing of polar bears for subsistence purposes with the Alaska

8 Nanuuq Commission.

9 ‘‘(b) DELEGATION.—To be eligible for the cooperative

10 management authority described in subsection (a), the

11 Alaska Nanuuq Commission—

12 ‘‘(1) shall have an active cooperative agreement

13 with the Secretary under section 119 of this title for

14 the conservation of polar bears;

15 ‘‘(2) shall meaningfully monitor compliance

16 with this title and the Agreement by Alaska Natives;

17 and

18 ‘‘(3) shall administer its co-management pro19 gram for polar bears in accordance with—

20 ‘‘(A) this title;

21 ‘‘(B) the Agreement; and

22 ‘‘(C) the Agreement on the Conservation of

23 Polar Bears, done at Oslo, November 15, 1973

24 (27 UST 3918; TIAS 8409).
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1 ‘‘SEC. 508. APPLICATION WITH OTHER TITLES OF ACT.

2 ‘‘(a) IN GENERAL.—The authority of the Secretary

3 under this title is in addition to, and shall not affect the

4 authority of the Secretary under, the other titles of this

5 Act or the Lacey Act Amendments of 1981 (16 U.S.C.

6 3371 et seq.) or the exemption for Alaskan natives under

7 section 101(b) of this Act.

8 ‘‘(b) CERTAIN PROVISIONS INAPPLICABLE.—The

9 provisions of titles I through IV of this Act do not apply

10 with respect to the implementation, enforcement, or ad11 ministration of this title.’’.

12 ‘‘SEC. 509. AUTHORIZATION OF APPROPRIATIONS.

13 ‘‘(a) IN GENERAL.—There are authorized to be ap14 propriated to the Secretary to carry out the functions and

15 responsibilities of the Secretary under this title and the

16 Agreement $1,000,000 for each of fiscal years 2006

17 through 2010.

18 ‘‘(b) COMMISSION.—There are authorized to be ap19 propriated to the Secretary to carry out functions and re20 sponsibilities of the United States Section $150,000 for

21 each of fiscal years 2006 through 2010.

22 ‘‘(c) ALASKAN COOPERATIVE MANAGEMENT PRO23 GRAM.—There are authorized to be appropriated to the

24 Secretary to carry out this title and the Agreement in

25 Alaska $150,000 for each of fiscal years 2006 through

26 2010.’’.
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1 (b) CLERICAL AMENDMENT.—The table of contents

2 in the first section of the Marine Mammal Protection Act

3 of 1972 (16 U.S.C. 1361 et seq.) is amended by adding

4 at the end the following:

TITLE V—ALASKA-CHUKOTKA POLAR BEARS

‘‘Sec. 501. Definitions.

‘‘Sec. 502. Prohibitions.

‘‘Sec. 503. Administration and enforcement.

‘‘Sec. 504. Designation and appointment of members of the United States Section of the Commission; compensation, travel expenses, and

claims.

‘‘Sec. 505. Votes taken by the United States Section on matters before the

Commission.

‘‘Sec. 506. Implementation of actions taken by the Commission.

‘‘Sec. 507. Cooperative management agreement; authority to delegate enforcement authority.

‘‘Sec. 508. Application with other titles of Act.

‘‘Sec. 509. Authorization of appropriations.’’.

Passed the Senate June 6, 2006.

Attest:

Secretary.
109TH CONGRESS

2D SESSION S. 2013

AN ACT

To amend the Marine Mammal Protection Act of

Chukotka Polar Bear Population.servation and Management of the Alaska1972 to implement the Agreement on the Con-