110TH CONGRESS

2D SESSION S. 3598

AN ACT

To amend titles 46 and 18, United States Code, with respect

to the operation of submersible vessels and semi-submersible vessels without nationality.

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

2 This Act may be cited as the ‘‘Drug Trafficking Ves3 sel Interdiction Act of 2008’’.

4 TITLE I—CRIMINAL PROHIBITION

5 SEC. 101. FINDINGS AND DECLARATIONS.

6 Congress finds and declares that operating or em7 barking in a submersible vessel or semi-submersible vessel

8 without nationality and on an international voyage is a

9 serious international problem, facilitates transnational

10 crime, including drug trafficking, and terrorism, and pre11 sents a specific threat to the safety of maritime navigation

12 and the security of the United States.

13 SEC. 102. OPERATION OF SUBMERSIBLE VESSEL OR SEMI14 SUBMERSIBLE VESSEL WITHOUT NATION15 ALITY.

16 (a) IN GENERAL.—Chapter 111 of title 18, United

17 States Code, is amended by adding at the end the fol18 lowing new section:

19 ‘‘§ 2285. OPERATION OF SUBMERSIBLE VESSEL OR

20 SEMI-SUBMERSIBLE VESSEL WITHOUT

21 NATIONALITY.

22 ‘‘(a) OFFENSE.—Whoever knowingly operates, or at23 tempts or conspires to operate, by any means, or embarks

24 in any submersible vessel or semi-submersible vessel that

25 is without nationality and that is navigating or has navi26 gated into, through, or from waters beyond the outer limit
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1 of the territorial sea of a single country or a lateral limit

2 of that country’s territorial sea with an adjacent country,

3 with the intent to evade detection, shall be fined under

4 this title, imprisoned not more than 15 years, or both.

5 ‘‘(b) EVIDENCE OF INTENT TO EVADE DETEC6 TION.—For purposes of subsection (a), the presence of

7 any of the indicia described in paragraph (1)(A), (E), (F),

8 or (G), or in paragraph (4), (5), or (6), of section

9 70507(b) of title 46 may be considered, in the totality of

10 the circumstances, to be prima facie evidence of intent to

11 evade detection.

12 ‘‘(c) EXTRATERRITORIAL JURISDICTION.—There is

13 extraterritorial Federal jurisdiction over an offense under

14 this section, including an attempt or conspiracy to commit

15 such an offense.

16 ‘‘(d) CLAIM OF NATIONALITY OR REGISTRY.—A

17 claim of nationality or registry under this section includes

18 only—

19 ‘‘(1) possession on board the vessel and produc20 tion of documents evidencing the vessel’s nationality

21 as provided in article 5 of the 1958 Convention on

22 the High Seas;

23 ‘‘(2) flying its nation’s ensign or flag; or

24 ‘‘(3) a verbal claim of nationality or registry by

25 the master or individual in charge of the vessel.
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1 ‘‘(e) AFFIRMATIVE DEFENSES.—

2 ‘‘(1) IN GENERAL.—It is an affirmative defense

3 to a prosecution for a violation of subsection (a),

4 which the defendant has the burden to prove by a

5 preponderance of the evidence, that the submersible

6 vessel or semi-submersible vessel involved was, at the

7 time of the offense—

8 ‘‘(A) a vessel of the United States or law9 fully registered in a foreign nation as claimed

10 by the master or individual in charge of the ves11 sel when requested to make a claim by an offi12 cer of the United States authorized to enforce

13 applicable provisions of United States law;

14 ‘‘(B) classed by and designed in accord15 ance with the rules of a classification society;

16 ‘‘(C) lawfully operated in government-regu17 lated or licensed activity, including commerce,

18 research, or exploration; or

19 ‘‘(D) equipped with and using an operable

20 automatic identification system, vessel moni21 toring system, or long range identification and

22 tracking system.

23 ‘‘(2) PRODUCTION OF DOCUMENTS.—The af24 firmative defenses provided by this subsection are

25 proved conclusively by the production of—
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1 ‘‘(A) government documents evidencing the

2 vessel’s nationality at the time of the offense, as

3 provided in article 5 of the 1958 Convention on

4 the High Seas;

5 ‘‘(B) a certificate of classification issued by

6 the vessel’s classification society upon comple7 tion of relevant classification surveys and valid

8 at the time of the offense; or

9 ‘‘(C) government documents evidencing li10 censure, regulation, or registration for com11 merce, research, or exploration.

12 ‘‘(f) FEDERAL ACTIVITIES EXCEPTED.—Nothing in

13 this section applies to lawfully authorized activities carried

14 out by or at the direction of the United States Govern15 ment.

16 ‘‘(g) APPLICABILITY OF OTHER PROVISIONS.—Sec17 tions 70504 and 70505 of title 46 apply to offenses under

18 this section in the same manner as they apply to offenses

19 under section 70503 of such title.

20 ‘‘(h) DEFINITIONS.—In this section, the terms ‘sub21 mersible vessel’, ‘semi-submersible vessel’, ‘vessel of the

22 United States’, and ‘vessel without nationality’ have the

23 meaning given those terms in section 70502 of title 46.’’.

24 (b) CLERICAL AMENDMENT.—The chapter analysis

25 for chapter 111 of title 18, United States Code, is amend-
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1 ed by inserting after the item relating to section 2284 the

2 following:

‘‘2285. Operation of submersible vessel or semi-submersible vessel without nationality’’.

3 SEC. 103. SENTENCING GUIDELINES.

4 (a) IN GENERAL.—Pursuant to its authority under

5 section 994(p) of title 28, United States Code, and in ac6 cordance with this section, the United States Sentencing

7 Commission shall promulgate sentencing guidelines (in8 cluding policy statements) or amend existing sentencing

9 guidelines (including policy statements) to provide ade10 quate penalties for persons convicted of knowingly oper11 ating by any means or embarking in any submersible ves12 sel or semi-submersible vessel in violation of section 2285

13 of title 18, United States Code.

14 (b) REQUIREMENTS.—In carrying out this section,

15 the United States Sentencing Commission shall—

16 (1) ensure that the sentencing guidelines and

17 policy statements reflect the serious nature of the of18 fense described in section 2285 of title 18, United

19 States Code, and the need for deterrence to prevent

20 such offenses;

21 (2) account for any aggravating or mitigating

22 circumstances that might justify exceptions,

23 including—
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1 (A) the use of a submersible vessel or

2 semi-submersible vessel described in section

3 2285 of title 18, United States Code, to facili4 tate other felonies;

5 (B) the repeated use of a submersible ves6 sel or semi-submersible vessel described in sec7 tion 2285 of title 18, United States Code, to fa8 cilitate other felonies, including whether such

9 use is part of an ongoing criminal organization

10 or enterprise;

11 (C) whether the use of such a vessel in12 volves a pattern of continued and flagrant viola13 tions of section 2285 of title 18, United States

14 Code;

15 (D) whether the persons operating or em16 barking in a submersible vessel or semi-sub17 mersible vessel willfully caused, attempted to

18 cause, or permitted the destruction or damage

19 of such vessel or failed to heave to when di20 rected by law enforcement officers; and

21 (E) circumstances for which the sentencing

22 guidelines (and policy statements) provide sen23 tencing enhancements;
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1 (3) ensure reasonable consistency with other

2 relevant directives, other sentencing guidelines and

3 policy statements, and statutory provisions;

4 (4) make any necessary and conforming

5 changes to the sentencing guidelines and policy

6 statements; and

7 (5) ensure that the sentencing guidelines and

8 policy statements adequately meet the purposes of

9 sentencing set forth in section 3553(a)(2) of title 18,

10 United States Code.

11 TITLE II—CIVIL PROHIBITION

12 SEC. 201. OPERATION OF SUBMERSIBLE VESSEL OR SEMI13 SUBMERSIBLE VESSEL WITHOUT NATION14 ALITY.

15 (a) FINDING AND DECLARATION.—Section 70501 of

16 title 46, United States Code, is amended—

17 (1) by inserting ‘‘(1)’’ after ‘‘that’’; and

18 (2) by striking ‘‘States.’’ and inserting ‘‘States

19 and (2) operating or embarking in a submersible

20 vessel or semi-submersible vessel without nationality

21 and on an international voyage is a serious inter22 national problem, facilitates transnational crime, in23 cluding drug trafficking, and terrorism, and presents

24 a specific threat to the safety of maritime navigation

25 and the security of the United States.’’.
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1 SEC. 202. OPERATION PROHIBITED.

2 (a) IN GENERAL.—Chapter 705 of title 46, United

3 States Code, is amended by adding at the end thereof the

4 following:

5 ‘‘§ 70508. Operation of submersible vessel or semi6 submersible vessel without nationality

7 ‘‘(a) IN GENERAL.—An individual may not operate

8 by any means or embark in any submersible vessel or

9 semi-submersible vessel that is without nationality and

10 that is navigating or has navigated into, through, or from

11 waters beyond the outer limit of the territorial sea of a

12 single country or a lateral limit of that country’s territorial

13 sea with an adjacent country, with the intent to evade de14 tection.

15 ‘‘(b) EVIDENCE OF INTENT TO EVADE DETEC16 TION.—In any civil enforcement proceeding for a violation

17 of subsection (a), the presence of any of the indicia de18 scribed in paragraph (1)(A), (E), (F), or (G), or in para19 graph (4), (5), or (6), of section 70507(b) may be consid20 ered, in the totality of the circumstances, to be prima facie

21 evidence of intent to evade detection.

22 ‘‘(c) DEFENSES.—

23 ‘‘(1) IN GENERAL.—It is a defense in any civil

24 enforcement proceeding for a violation of subsection

25 (a) that the submersible vessel or semi-submersible

26 vessel involved was, at the time of the violation—
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1 ‘‘(A) a vessel of the United States or law2 fully registered in a foreign nation as claimed

3 by the master or individual in charge of the ves4 sel when requested to make a claim by an offi5 cer of the United States authorized to enforce

6 applicable provisions of United States law;

7 ‘‘(B) classed by and designed in accord8 ance with the rules of a classification society;

9 ‘‘(C) lawfully operated in government-regu10 lated or licensed activity, including commerce,

11 research, or exploration; or

12 ‘‘(D) equipped with and using an operable

13 automatic identification system, vessel moni14 toring system, or long range identification and

15 tracking system.

16 ‘‘(2) PRODUCTION OF DOCUMENTS.—The de17 fenses provided by this subsection are proved conclu18 sively by the production of—

19 ‘‘(A) government documents evidencing the

20 vessel’s nationality at the time of the offense, as

21 provided in article 5 of the 1958 Convention on

22 the High Seas;

23 ‘‘(B) a certificate of classification issued by

24 the vessel’s classification society upon comple-
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1 tion of relevant classification surveys and valid

2 at the time of the offense; or

3 ‘‘(C) government documents evidencing li4 censure, regulation, or registration for research

5 or exploration.

6 ‘‘(d) CIVIL PENALTY.—A person violating this sec7 tion shall be liable to the United States for a civil penalty

8 of not more than $1,000,000.’’

9 (b) CONFORMING AMENDMENTS.—

10 (1) The chapter analysis for chapter 705 of title

11 46, United States Code, is amended by inserting

12 after the item relating to section 70507 the fol13 lowing:

‘‘70508. Operation of submersible vessel or semi-submersible vessel without nationality’’.

14 (2) Section 70504(b) of title 46, United States

15 Code, is amended by inserting ‘‘or 70508’’ after

16 ‘‘70503’’.

17 (3) Section 70505 of title 46, United States

18 Code, is amended by striking ‘‘this title’’ and insert19 ing ‘‘this title, or against whom a civil enforcement

20 proceeding is brought under section 70508,’’.

21 SEC. 203. SUBMERSIBLE VESSEL AND SEMI-SUBMERSIBLE

22 VESSEL DEFINED.

23 Section 70502 of title 46, United States Code, is

24 amended by adding at the end thereof the following:
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1 ‘‘(f) SEMI-SUBMERSIBLE VESSEL; SUBMERSIBLE

2 VESSEL.—In this chapter:

3 ‘‘(1) SEMI-SUBMERSIBLE VESSEL.—The term

4 ‘semi-submersible vessel’ means any watercraft con5 structed or adapted to be capable of operating with

6 most of its hull and bulk under the surface of the

7 water, including both manned and unmanned

8 watercraft.

9 ‘‘(2) SUBMERSIBLE VESSEL.—The term ‘sub10 mersible vessel’ means a vessel that is capable of op11 erating completely below the surface of the water,

12 including both manned and unmanned watercraft.’’.

Passed the Senate September 25, (legislative day,

September 17), 2008.

Attest:

Secretary.
110TH CONGRESS

2D SESSION S. 3598

AN ACT

To amend titles 46 and 18, United States Code,

ality.sels and semi-submersible vessels without nationwith respect to the operation of submersible ves-