S. 3598

One Hundred Tenth Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Thursday,

the third day of January, two thousand and eight

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.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Drug Trafficking Vessel Interdiction Act of 2008’’.

TITLE I—CRIMINAL PROHIBITION

SEC. 101. FINDINGS AND DECLARATIONS.

Congress finds and declares that operating or embarking in

a submersible vessel or semi-submersible vessel without nationality

and on an international voyage is a serious international problem,

facilitates transnational crime, including drug trafficking, and terrorism, and presents a specific threat to the safety of maritime

navigation and the security of the United States.

SEC. 102. OPERATION OF SUBMERSIBLE VESSEL OR SEMI-SUBMERSIBLE VESSEL WITHOUT NATIONALITY.

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

is amended by adding at the end the following new section:

‘‘§ 2285. OPERATION OF SUBMERSIBLE VESSEL OR SEMISUBMERSIBLE VESSEL WITHOUT NATIONALITY.

‘‘(a) OFFENSE.—Whoever knowingly operates, or attempts or

conspires to operate, by any means, or embarks in any submersible

vessel or semi-submersible vessel that is without nationality and

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

beyond the outer limit of the territorial sea of a single country

or a lateral limit of that country’s territorial sea with an adjacent

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

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

‘‘(b) EVIDENCE OF INTENT TO EVADE DETECTION.—For purposes

of subsection (a), the presence of any of the indicia described in

paragraph (1)(A), (E), (F), or (G), or in paragraph (4), (5), or (6),

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

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

detection.

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

Federal jurisdiction over an offense under this section, including

an attempt or conspiracy to commit such an offense.
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‘‘(d) CLAIM OF NATIONALITY OR REGISTRY.—A claim of nationality or registry under this section includes only—

‘‘(1) possession on board the vessel and production of documents evidencing the vessel’s nationality as provided in article

5 of the 1958 Convention on the High Seas;

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

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

or individual in charge of the vessel.

‘‘(e) AFFIRMATIVE DEFENSES.—

‘‘(1) IN GENERAL.—It is an affirmative defense to a prosecution for a violation of subsection (a), which the defendant has

the burden to prove by a preponderance of the evidence, that

the submersible vessel or semi-submersible vessel involved was,

at the time of the offense—

‘‘(A) a vessel of the United States or lawfully registered

in a foreign nation as claimed by the master or individual

in charge of the vessel when requested to make a claim

by an officer of the United States authorized to enforce

applicable provisions of United States law;

‘‘(B) classed by and designed in accordance with the

rules of a classification society;

‘‘(C) lawfully operated in government-regulated or

licensed activity, including commerce, research, or exploration; or

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

identification system, vessel monitoring system, or long

range identification and tracking system.

‘‘(2) PRODUCTION OF DOCUMENTS.—The affirmative defenses

provided by this subsection are proved conclusively by the

production of—

‘‘(A) government documents evidencing the vessel’s

nationality at the time of the offense, as provided in article

5 of the 1958 Convention on the High Seas;

‘‘(B) a certificate of classification issued by the vessel’s

classification society upon completion of relevant classification surveys and valid at the time of the offense; or

‘‘(C) government documents evidencing licensure, regulation, or registration for commerce, research, or exploration.

‘‘(f) FEDERAL ACTIVITIES EXCEPTED.—Nothing in this section

applies to lawfully authorized activities carried out by or at the

direction of the United States Government.

‘‘(g) APPLICABILITY OF OTHER PROVISIONS.—Sections 70504 and

70505 of title 46 apply to offenses under this section in the same

manner as they apply to offenses under section 70503 of such

title.

‘‘(h) DEFINITIONS.—In this section, the terms ‘submersible

vessel’, ‘semi-submersible vessel’, ‘vessel of the United States’, and

‘vessel without nationality’ have the meaning given those terms

in section 70502 of title 46.’’.
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(b) CLERICAL AMENDMENT.—The chapter analysis for chapter

111 of title 18, United States Code, is amended by inserting after

the item relating to section 2284 the following:

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

SEC. 103. SENTENCING GUIDELINES.

(a) IN GENERAL.—Pursuant to its authority under section 994(p)

of title 28, United States Code, and in accordance with this section,

the United States Sentencing Commission shall promulgate sentencing guidelines (including policy statements) or amend existing

sentencing guidelines (including policy statements) to provide adequate penalties for persons convicted of knowingly operating by

any means or embarking in any submersible vessel or semisubmersible vessel in violation of section 2285 of title 18, United

States Code.

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

States Sentencing Commission shall—

(1) ensure that the sentencing guidelines and policy statements reflect the serious nature of the offense described in

section 2285 of title 18, United States Code, and the need

for deterrence to prevent such offenses;

(2) account for any aggravating or mitigating circumstances

that might justify exceptions, including—

(A) the use of a submersible vessel or semi-submersible

vessel described in section 2285 of title 18, United States

Code, to facilitate other felonies;

(B) the repeated use of a submersible vessel or semisubmersible vessel described in section 2285 of title 18,

United States Code, to facilitate other felonies, including

whether such use is part of an ongoing criminal organization or enterprise;

(C) whether the use of such a vessel involves a pattern

of continued and flagrant violations of section 2285 of title

18, United States Code;

(D) whether the persons operating or embarking in

a submersible vessel or semi-submersible vessel willfully

caused, attempted to cause, or permitted the destruction

or damage of such vessel or failed to heave to when directed

by law enforcement officers; and

(E) circumstances for which the sentencing guidelines

(and policy statements) provide sentencing enhancements;

(3) ensure reasonable consistency with other relevant directives, other sentencing guidelines and policy statements, and

statutory provisions;

(4) make any necessary and conforming changes to the

sentencing guidelines and policy statements; and

(5) ensure that the sentencing guidelines and policy statements adequately meet the purposes of sentencing set forth

in section 3553(a)(2) of title 18, United States Code.
S. 3598—4

TITLE II—CIVIL PROHIBITION

SEC. 201. OPERATION OF SUBMERSIBLE VESSEL OR SEMI-SUBMERSIBLE VESSEL WITHOUT NATIONALITY.

(a) FINDING AND DECLARATION.—Section 70501 of title 46,

United States Code, is amended—

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

(2) by striking ‘‘States.’’ and inserting ‘‘States and (2) operating or embarking in a submersible vessel or semi-submersible

vessel without nationality and on an international voyage is

a serious international problem, facilitates transnational crime,

including drug trafficking, and terrorism, and presents a specific threat to the safety of maritime navigation and the security

of the United States.’’.

SEC. 202. OPERATION PROHIBITED.

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

is amended by adding at the end thereof the following:

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

‘‘(a) IN GENERAL.—An individual may not operate by any means

or embark in any submersible vessel or semi-submersible vessel

that is without nationality and that is navigating or has navigated

into, through, or from waters beyond the outer limit of the territorial

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

sea with an adjacent country, with the intent to evade detection.

‘‘(b) EVIDENCE OF INTENT TO EVADE DETECTION.—In any civil

enforcement proceeding for a violation of subsection (a), the presence

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

(G), or in paragraph (4), (5), or (6), of section 70507(b) may be

considered, in the totality of the circumstances, to be prima facie

evidence of intent to evade detection.

‘‘(c) DEFENSES.—

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

proceeding for a violation of subsection (a) that the submersible

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

of the violation—

‘‘(A) a vessel of the United States or lawfully registered

in a foreign nation as claimed by the master or individual

in charge of the vessel when requested to make a claim

by an officer of the United States authorized to enforce

applicable provisions of United States law;

‘‘(B) classed by and designed in accordance with the

rules of a classification society;

‘‘(C) lawfully operated in government-regulated or

licensed activity, including commerce, research, or exploration; or

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

identification system, vessel monitoring system, or long

range identification and tracking system.

‘‘(2) PRODUCTION OF DOCUMENTS.—The defenses provided

by this subsection are proved conclusively by the production

of—

‘‘(A) government documents evidencing the vessel’s

nationality at the time of the offense, as provided in article

5 of the 1958 Convention on the High Seas;
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‘‘(B) a certificate of classification issued by the vessel’s

classification society upon completion of relevant classification surveys and valid at the time of the offense; or

‘‘(C) government documents evidencing licensure, regulation, or registration for research or exploration.

‘‘(d) CIVIL PENALTY.—A person violating this section shall be

liable to the United States for a civil penalty of not more than

$1,000,000.’’

(b) CONFORMING AMENDMENTS.—

(1) The chapter analysis for chapter 705 of title 46, United

States Code, is amended by inserting after the item relating

to section 70507 the following:

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

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

amended by inserting ‘‘or 70508’’ after ‘‘70503’’.

(3) Section 70505 of title 46, United States Code, is

amended by striking ‘‘this title’’ and inserting ‘‘this title, or

against whom a civil enforcement proceeding is brought under

section 70508,’’.

SEC. 203. SUBMERSIBLE VESSEL AND SEMI-SUBMERSIBLE VESSEL

DEFINED.

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

by adding at the end thereof the following:

‘‘(f) SEMI-SUBMERSIBLE VESSEL; SUBMERSIBLE VESSEL.—In this

chapter:

‘‘(1) SEMI-SUBMERSIBLE VESSEL.—The term ‘semi-submersible vessel’ means any watercraft constructed or adapted to

be capable of operating with most of its hull and bulk under

the surface of the water, including both manned and unmanned

watercraft.

‘‘(2) SUBMERSIBLE VESSEL.—The term ‘submersible vessel’

means a vessel that is capable of operating completely below

the surface of the water, including both manned and unmanned

watercraft.’’.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.