I 108th CONGRESS 2d Session H. R. 4928 IN THE HOUSE OF REPRESENTATIVES July 22, 2004 Mr. Case introduced the following bill; which was referred to the Committee on Resources, and in addition to the Committees on Ways and Means and International Relations, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To prohibit the import, export, and take of certain coral reef species, and for other purposes.

1.

Short title

This Act may be cited as the Coral Reef Conservation and Protection Act of 2004.

2.

Findings and purpose

(a)

Findings

Congress finds the following: (1)Coral reefs and coral reef ecosystems are the marine equivalent of tropical rain forests, containing some of the richest biological diversity, habitats, and systems on Earth and supporting thousands of fish, invertebrates, algae, plankton, sea grasses, and other species. (2)Coral reefs and coral reef ecosystems have great commercial, recreational, cultural, and aesthetic value to human communities as shoreline protection, areas of natural beauty, and sources of food, jobs, and pharmaceuticals, and are the focus of a wide variety of activities, including education, research, recreation, tourism, and fishing. (3)Studies indicate that coral reef ecosystems in the United States and around the world are being degraded and severely threatened by human activities including land-based pollution, overfishing, destructive fishing practices, coastal development, vessel groundings, and climate change. (4)Executive Order 13089 created the United States Coral Reef Task Force, which is chaired by the Secretary of the Interior and the Secretary of Commerce, to develop measures necessary to reduce and mitigate coral reef ecosystem degradation and to restore damaged coral reefs, assess the United States’ role in international trade and protection of coral reef species, and implement appropriate strategies and actions to promote conservation and sustainable use of coral reef resources. (5)International trade in coral, other reef invertebrates, reef fish, live rock, and other coral products contributes to the decline and degradation of reefs, primarily through the use of destructive collection practices, overexploitation of resources, loss of reef habitat, and introduction of non-indigenous species, invasive species, and pathogens. (6)The United States is the largest importer of live coral, live rock, and marine fish for the aquarium trade and of coral skeletons and precious corals for souvenirs and jewelry. (7)The harvest of live coral and wild live rock is of special concern because it removes essential components of reef habitats, increases erosion, and damages critical fisheries habitats. (8)More than half of the fish imported into the United States for the marine aquarium market are estimated to be captured with the use of cyanide and other poisons which kill other coral reef species and the corals that form the reef framework, and these destructive fishing practices are becoming increasingly common in other countries to meet the growing worldwide demand for ornamental fish and live food fish. (9)As many as 1/3 to 1/2 of the aquarium fish imported from Southeast Asia die shortly after arriving in the United States due to stress associated with handling and transport and the use of cyanide during capture, and such high mortality rates lead to continued pressure for extraction from the wild to maintain public and private collections. (10)The United States, as the world’s largest importer of coral reef species and products and as a party to the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES), should play a substantial role in conserving and restoring coral reef ecosystems, including assisting other countries in developing and implementing coral reef conservation programs and ensuring that the market in the United States for coral reef species and products does not contribute to the detriment of the survival of the species in the wild or to the detriment of coral reef ecosystems. (11)The United States should also exercise leadership in moving from a species-based sustainable management approach to an ecosystem-based approach. (b)

Purpose

The purpose of this Act is to provide a series of nondiscriminatory measures which are necessary for the conservation of coral reef species and further the obligations of the United States under CITES.

3.

Prohibition on taking, importing, exporting, and transporting certain coral reef species

(a)

In general

Subject to section 4, it is unlawful for any person to— (1)take any covered coral reef species within waters under the jurisdiction of the United States; (2)import into or export from the United States any covered coral reef species; (3)possess, sell, purchase, deliver, carry, transport, or receive in interstate or foreign commerce any covered coral reef species taken or imported in violation of paragraphs (1) or (2); or (4)attempt to commit any act described in paragraphs (1) through (3). (b)

Covered coral reef species

(1)

In general

For the purposes of this Act, the term covered coral reef species means— (A)any species of coral or ornamental reef fish; (B)any coral reef species listed in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) as of the effective date of this Act; (C)any coral reef species added to Appendix II of CITES after the effective date of this Act, unless the Secretary of the Interior, in consultation with the Secretary of Commerce, finds before the expiration of the 90-day period which begins on the effective date of the inclusion of such species in Appendix II that the take, import, and export of such species do not represent a substantial risk of harm to the sustainability of such species and its coral reef ecosystem; or (D)any other coral reef species (excluding any finfish, mollusk, crustacean, or other animal or plant species taken for human consumption) the take, import, or export of which the Secretary of the Interior and the Secretary of Commerce have determined, after notice and opportunity for public comment— (i)presents a substantial risk of harm to the sustainability of such species or of its coral reef ecosystem; or (ii)results in high mortality rates for individuals of that species due to poor survivorship in transport or captivity. (2)

Removal of a species from definition

(A)

In general

A species may be removed from the definition of covered coral reef species under paragraphs (1)(B) through (D), if the Secretary of the Interior determines that the take, import, and export of such species do not represent a substantial risk of harm to the sustainability of that species and of its coral reef ecosystem. (B)

Role of Secretary of Commerce

In carrying out subparagraph (A), the Secretary of the Interior shall consult with the Secretary of the Commerce with respect to a covered coral reef species under paragraph (1)(B) or (1)(C), and act jointly with the Secretary of the Interior with respect to a covered coral reef species under paragraph (1)(D). (c)

Effective date

This section shall take effect upon the expiration of the 1-year period which begins on the date of the enactment of this Act.

4.

Exceptions

(a)

In general

(1)

Scientifically-based management plans

(A)

Exception

Section 3 shall not apply with respect to a covered coral reef species if such species was taken in accordance with a qualified scientifically-based management plan. (B)

Qualification of plan

For purposes of this subsection, a scientifically-based management plan is qualified if the appropriate Secretary determines that the plan— (i)provides for the conservation of a covered coral reef species and its habitat; (ii)provides that a covered coral reef species is taken in such a manner and in such quantities so as not to threaten the biological sustainability of that species or its role in the ecosystem and so as to minimize the adverse impact of the take on the coral reef; (iii)addresses factors relevant to the conservation of a covered coral reef species, which may include illegal trade, domestic trade, subsistence use, disease, habitat loss, and cumulative effects of the take on the coral reef species; and (iv)prohibits the use of the destructive collection practices described in subsection (b)(2). (C)

Appropriate Secretary

For purposes of this paragraph, the term appropriate Secretary means— (i)the Secretary of Commerce with respect to domestic plans; (ii)the Secretary of Commerce and the Secretary of the Interior with respect to foreign plans; or (iii)the Secretary with jurisdiction over the waters in which the plan is located with respect to plans located in waters within the Exclusive Economic Zone (as defined under section (3) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802)). (2)

Cooperative breeding programs

(A)

Exception

Section 3 shall not apply with respect to a covered coral reef species if such species is a product of a qualified cooperative breeding program. (B)

Qualification of program

For purposes of this subsection, a cooperative breeding program is qualified if the Secretary of Commerce, in the case of domestic programs, or the Secretary of Commerce and the Secretary of the Interior, in the case of foreign programs, determines that the program is— (i)designed to promote the conservation of covered coral reef species and maintain such species in the wild by enhancing the propagation and survival of such species; and (ii)developed and administered by, or in conjunction with, an aquarium, conservation, or zoological organization which meets standards established by the appropriate Secretary. (3)

Aquaculture and mariculture facilities

(A)

Exception

Section 3 shall not apply with respect to a covered coral reef species if such species is a product of a qualified aquaculture or mariculture facility. (B)

Qualification of facility

For purposes of this subsection, an aquaculture or mariculture facility is qualified if the Secretary of Commerce, in the case of domestic facilities, or the Secretary of Commerce and the Secretary of the Interior, in the case of foreign facilities, determines that the facility— (i)demonstrates the capability to produce sufficient captive covered coral reef species in the numbers to be traded from that facility; (ii)operates in a manner which is not detrimental to the conservation of the species in the wild; (iii)operates in a manner which does not harm existing ecosystems, such as by introducing non-indigenous species or pathogens; and (iv)operates with sufficient safeguards so as to prevent the escape of captive species and their eggs, larvae, young, fragments, and other organs of propagation. (4)

Scientific, museum, or zoological purposes

Section 3 shall not apply with respect to a covered coral reef species taken pursuant to authorization by the Secretary of Commerce, or imported or exported pursuant to authorization by the Secretary of the Interior for scientific purposes, museum purposes, or zoological breeding or display. (5)

Incidental takes

Section 3 shall not apply with respect to a covered coral reef species taken incidentally, if such incidental takes are exempted by the Secretary of the Interior and the Secretary of Commerce by regulation. (6)

Subsistence

Section 3 shall not apply with respect to a covered coral reef species taken for personal consumption by an individual, if the taking is customary, traditional, or necessary for the subsistence of the individual or the individual’s family. (b)

No exception for species taken using destructive collection practices

(1)

In general

No exception shall be allowed under subsection (a) with respect to a covered coral reef species that was— (A)taken in waters under the jurisdiction of the United States using any destructive collection practice; or (B)imported or exported without a certification by the importer or exporter that the covered coral reef species to be imported or exported was not taken through the use of any destructive collection practice. (2)

Destructive collection practices

For the purposes of this Act, destructive collection practice means any practice used in the take of coral reef species which includes any of the following: (A)Reef-dredging. (B)Explosives. (C)Poisons. (D)Any other destructive collection practice identified by the Secretary of Commerce by regulation, in consultation with the Secretary of the Interior and the advisory group described in section 6(b). (3)

Presence of poisons

For the purposes of this Act, the presence of cyanide, any other poison, or any metabolite associated with any such poison in a coral reef species shall constitute evidence that poison was used in the take of the coral reef species.

5.

Consultation regarding protection of coral reef species

The Secretary of State, in consultation with the Administrator of the United States Agency for International Development, the Secretary of the Interior, and the Secretary of Commerce, may initiate consultations with foreign governments which are engaged in, or whose citizens include persons engaged in, commercial operations which take coral reef species, for the purpose of— (1)encouraging the protection of coral reef species through building consensus on standards for, and implementation of, sustainable management plans; and (2)taking steps to eliminate of the use of the destructive collection practices described in section 4(b)(2).

6.

Coordination regarding conservation of coral reef ecosystems

(a)

Coral Reef Task Force

In carrying out this Act, the Secretary of the Interior and the Secretary of Commerce shall coordinate with members of the Coral Reef Task Force for the conservation and sustainable management of coral reef ecosystems. (b)

Advisory group

(1)

In general

The Secretary of the Interior and the Secretary of Commerce shall convene an advisory group consisting of individuals representing public and private organizations affected by this Act, including persons involved in the conservation of coral reef ecosystems, the harvest and trade of coral reef species, and the operation of cooperative breeding programs and aquaculture and mariculture facilities for the propagation of coral reef species, and representatives of Federal agencies, states, and territories, which are represented on the Coral Reef Task Force. (2)

Development of guidelines, strategy, and criteria

Before the expiration of the 1-year period which begins on the date of the enactment of this Act, the Secretary of the Interior and the Secretary of Commerce, in consultation with the advisory group, shall develop— (A)criteria and indicators for the conservation and sustainable management of coral reef ecosystems; (B)a coordinated national strategy for conservation and sustainable management of coral reef species and ecosystems based on the criteria and indicators developed under subparagraph (A); and (C)guidelines for the capture, commercial transport, and handling of coral reef species which would improve their rates of survival. (c)

International cooperation

The Secretary of State and the Administrator of the United States Agency for International Development, in coordination with the heads of other appropriate departments and agencies, shall utilize their authorities to further the purposes of this Act by encouraging policies and implementing programs to promote the conservation and sustainable management of coral reef ecosystems in other parts of the world, by such means as multilateral negotiations, participation in various international fora, bilateral assistance, and capacity building.

7.

Enforcement

(a)

Civil money penalties

(1)

In general

The Secretary of the Interior or the Secretary of Commerce, upon finding a violation of section 3, may require the person responsible for such violation to pay a civil money penalty in an amount determined under a schedule of penalties which is established and published by the Secretary, but which does not exceed $25,000 for each violation, and which takes into account— (A)the nature of the violation involved; (B)the revenues of the person; (C)previous violations of section 3 by the person; and (D)such other factors as the Secretary considers appropriate. (2)

Notice and opportunity for hearing

The Secretary of the Interior or the Secretary of Commerce may not make any determination adverse to a person under subsection (a) until such person has been given written notice and an opportunity to be heard before the Secretary or designee. (b)

Declaratory or injunctive relief

The Attorney General may bring a civil action in an appropriate United States district court seeking declaratory or injunctive relief for any alleged violation of sections 3. (c)

Criminal penalties

(1)

In general

Any person who knowingly violates section 3 shall be fined in accordance with title 18, United States Code, imprisoned for not more than 6 months, or both. (2)

Persons engaged in business

Any person engaged in business as an importer or exporter of coral reef species who knowingly violates section 3 shall be fined in accordance with title 18, United States Code, or imprisoned for not more than 2 years, or both. (3)

False statements in certifications

Any person who knowingly makes, causes to be made, or submits any false material statement or representation in a certification under section 4(b)(1)(B) shall be fined in accordance with title 18, United States Code, or imprisoned for not more than 2 years, or both, and may also be prohibited from importing or exporting any coral reef species. (d)

Rewards and incidental expenses

(1)

In general

The Secretary of the Interior or the Secretary of Commerce may pay, from sums received as penalties, fines, or forfeitures of property for violations of section 3— (A)a reward to any person who furnishes information which leads to an arrest, criminal conviction, civil penalty assessment, or forfeiture of property for any violation of section 3; and (B)the reasonable and necessary costs incurred by any person in providing temporary care for any coral reef species pending the disposition of any civil or criminal proceeding alleging a violation of section 3. (2)

Amount of reward

The amount of a reward paid under this subsection shall be designated by the Secretary of the Interior or the Secretary of Commerce. (3)

Ineligibility of government officials

Any officer or employee of the United States or any State or local government who furnishes information or renders service in the performance of his official duties is ineligible to receive a reward under this subsection. (e)

Executive branch enforcement

(1)

Searches and seizures

(A)

In general

Any person authorized by the Secretary of the Interior, the Secretary of Commerce, the Secretary of the Treasury, or the Secretary of the Department in which the Coast Guard is operating may search and seize any coral reef species taken, imported, exported, possessed, sold, delivered, carried, transported, or received in violation of section 3, with or without a warrant, as authorized by law. (B)

Seized coral reef species

Any coral reef species seized under subparagraph (A) shall be held by any person so authorized pending disposition of civil or criminal proceedings, or the institution of an action in rem for forfeiture of such coral reef species pursuant to paragraph (3), except that the appropriate Secretary may, in lieu of holding such species, permit the owner or consignee to post a bond or other surety satisfactory to the Secretary, but upon forfeiture of any such property to the United States, or the abandonment or waiver of any claim to any such property, it shall be disposed of (other than by sale to the general public) by the Secretary in such a manner, consistent with the purposes of this Act, as the Secretary shall by regulation prescribe. (2)

Citations

If any officer authorized to enforce the provisions of this Act finds that a person has violated section 3, such officer may, in accordance with regulations issued by the Secretary of Commerce, Secretary of the Interior, and the Secretary of the department in which the Coast Guard is operating, issue a citation to the violator. (3)

Forfeiture

(A)

Coral reef species

All coral reef species taken, imported, exported, possessed, sold, delivered, carried, transported, or received in violation of section 3 shall be subject to forfeiture to the United States. (B)

Equipment used in unlawful practices

All guns, traps, nets, and other equipment, vessels, vehicles, aircraft, and other means of transportation used to aid the take, importing, exporting, possessing, selling, purchasing, delivering, carrying, transporting, or receiving of any coral reef species in violation of section 3, shall be subject to forfeiture to the United States upon conviction of a criminal violation pursuant to subsections (b)(1) or (b)(2). (4)

Other provisions of law

Any provision of law relating to the seizure, forfeiture, and condemnation of a vessel for violation a customs law, the disposition of such vessel or the proceeds from the sale thereof, and the remission or mitigation of such forfeiture, shall apply to any seizure or forfeiture incurred or allegedly incurred under this Act, insofar as such provision of law is applicable and not inconsistent with the provisions of this Act, except that all powers, rights, and duties conferred or imposed by the customs laws upon any officer or employee of the Department of the Treasury shall, for the purposes of this Act, be exercised or performed by the Secretary of Commerce or by such persons as the Secretary may designate. (f)

Citizen actions

(1)

In general

Except as provided in paragraph (2), any person may commence a civil action to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the 11th Amendment to the Constitution), who is alleged to be in violation of section 3. (2)

Jurisdiction of district courts

The United States District Court for the judicial district in which the alleged violation occurs shall have jurisdiction in all actions brought under this subsection, without regard for the amount in controversy or the citizenship of the parties. (3)

Intervention by Attorney General

In any such action under this subsection in which the United States is not a party, the Attorney General may intervene on behalf of the United States as a matter of right. (4)

Exceptions

No action may be commenced under this subsection— (A)prior to 60 days after written notice of the violation has been given to the Secretary of the Interior and the Secretary of Commerce, and to any alleged violator of any such provision or regulation; or (B)if the Secretary of the Interior, the Secretary of Commerce, or the Attorney General has initiated an enforcement action under this section. (5)

Recovery of court costs

In any action brought pursuant to paragraph (1), the court may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. (6)

Relief under other laws

The injunctive relief provided by this subsection shall not restrict any right which any person may have under any statute or common law to seek enforcement of any standard or limitation or to seek any other relief. (g)

American Samoa

For the purposes of any action brought under this Act, American Samoa shall be included within the judicial district of the United States District Court for the District of Hawaii.

8.

Regulations

(a)

In general

Before the expiration of the 1-year period beginning on the date of the enactment of this Act, the Secretary of the Interior and the Secretary of Commerce shall promulgate such regulations as they deem necessary and appropriate to carry out the purposes of this Act. (b)

Enforcement regulations

The Secretary of the Interior, the Secretary of Commerce, the Secretary of the Treasury, and the Secretary of the Department in which the Coast Guard is operating, are authorized to promulgate such regulations as may be appropriate to enforce this Act, and charge reasonable fees for expenses connected with reviewing certificates authorized by this Act, including processing applications and reasonable inspections, and with the transfer, board, handling, or storage of coral reef species and evidentiary items seized and forfeited under this Act. Any such fees collected pursuant to this subsection shall be deposited in the Treasury to the credit of the appropriation which is current and chargeable for the cost of furnishing the services. Appropriated funds may be expended pending reimbursement from parties in interest.

9.

Relationship to State laws

Nothing in this Act shall be construed or interpreted as preempting any State from imposing any more restrictive requirement regarding any coral reef species, so long as such requirement is consistent with the international obligations of the United States and this Act.

10.

Relationship to Federal fishery management plans

Nothing in this Act shall be construed or interpreted as preempting any fishery management plan developed under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) that contains management measures more restrictive than those required by this Act.

11.

Definitions

In this Act, the following definitions apply: (1)The term coral means any living or dead specimens, parts or derivatives, or any product containing specimens, parts or derivatives of any species of the phylum Cnidaria, including— (A)all species of black corals (Antipatharia), stony corals (Scleractinia), soft corals (Alcyonacea), horny corals (Gorgonacea), organ pipe corals (Stolonifera), blue corals (Coenothecalia), anemones (Actiniaria), coralliomorphs (Coralliomorpharia), and zooanthids (Zoanthidea) of the class Anthozoa; and (B)all species of the fire corals (Milleporina) and lace corals (Stylasterina) of the class Hydrozoa. (2)The term coral reef means any reef, shoal, or other natural feature composed in part of the solid skeletal structures in which corals are major framework constituents. (3)The term coral reef ecosystem means the interacting complex of species (including reef plants of the phyla Chlorophyta, Phaeophyta, and Rhodophyta) and nonliving variables associated with coral reefs and their habitats which function as an ecological unit in nature and which are mutually dependent on this function to survive. (4)The term coral reef species means— (A)any species of plant or animal, including algae, seagrasses, invertebrates and vertebrates that live in, on, or near coral reefs and are directly dependent on the coral reef ecosystem for feeding, reproduction or growth, but does not include mammals, reptiles, or birds; and (B)products derived from coral, such as live rock, coral substrate, and coral rock. (5)The term foreign commerce includes any transaction between persons within one foreign country, between persons in 2 or more foreign countries, between a person within the United States and a person in a foreign country, or between persons within the United States, where the coral reef species in question is moving in any country or countries outside the United States. (6)The term import means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the custom laws of the United States. (7)The term live rock means any hard substrate derived from coral which is grown in the wild and which is attached to and supporting any species covered under paragraph (4)(A), and includes coral rock and coral substrate. (8)The term ornamental reef fish means any finfish collected commercially for the aquarium and curio trade, but does not include any fish taken for human consumption. (9)The term State means a State, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States. (10)The term take means to capture, catch, collect or harvest coral reef species by any means. (11)The term United States includes the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory or possession of the United States that contains coral within its jurisdiction. (12)The term waters under the jurisdiction of the United States means the belt of seas extending to a distance of 200 nautical miles measured from the baseline from which the breadth of the territorial sea of the United States is measured, except where that distance is modified by maritime boundary agreements to which the United States is a party.

12.

Authorization of appropriations

There is authorized to be appropriated to carry out the provisions of this Act, for each of fiscal years 2006 through 2010— (1)for the Secretary of the Interior, $5,000,000; (2)for the Secretary of Commerce, $3,000,000; and (3)for the Secretary of State, $500,000.