[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2010 Introduced in House (IH)]
110th CONGRESS
1st Session
H. R. 2010
To provide the necessary authority to the Secretary of Commerce for the
establishment and implementation of a regulatory system for offshore
aquaculture in the United States Exclusive Economic Zone, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 24, 2007
Mr. Rahall (for himself and Ms. Bordallo) (both by request): introduced
the following bill; which was referred to the Committee on Natural
Resources, and in addition to the Committees on Ways and Means and
Foreign Affairs, 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 provide the necessary authority to the Secretary of Commerce for the
establishment and implementation of a regulatory system for offshore
aquaculture in the United States Exclusive Economic Zone, and for other
purposes.
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 ``National Offshore Aquaculture Act of
2007''.
SEC. 2. FINDINGS.
(a) It is the policy of the United States to:
(1) Support an offshore aquaculture industry that will
produce food and other valuable products, protect wild stocks
and the quality of marine ecosystems, and be compatible with
other uses of the Exclusive Economic Zone;
(2) Encourage the development of environmentally
responsible offshore aquaculture by authorizing offshore
aquaculture operations and research;
(3) Establish a permitting process for offshore aquaculture
that encourages private investment in aquaculture operations
and research, provides opportunity for public comment, and
addresses the potential risks to and impacts (including
cumulative impacts) on marine ecosystems, human health and
safety, other ocean uses, and coastal communities from offshore
aquaculture;
(4) Promote, through public-private partnerships, research
and development in marine aquaculture science, technology, and
related social, economic, legal, and environmental management
disciplines that will enable marine aquaculture operations to
achieve operational objectives while protecting marine
ecosystem quality.
(b) Offshore aquaculture activities within the Exclusive Economic
Zone of the United States constitute activities with respect to which
the United States has proclaimed sovereign rights and jurisdiction
under Presidential Proclamation 5030 of March 10, 1983.
SEC. 3. DEFINITIONS.
As used in this Act--
(a) The term ``coastal State'' means a state of the United States
in, or bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf
of Mexico, or Long Island Sound. The term also includes Puerto Rico,
the Virgin Islands, Guam, the Commonwealth of the Northern Mariana
Islands, the Trust Territories of the Pacific Islands, and American
Samoa.
(b) The term ``coastline'' means the line of ordinary low water
along that portion of the coast that is in direct contact with the open
sea and the line marking the seaward limit of inland waters.
(c) The term ``Exclusive Economic Zone'' means, unless otherwise
specified by the President in the public interest in a writing
published in the Federal Register, a zone, the outer boundary of which
is 200 nautical miles from the baseline from which the breadth of the
territorial sea is measured, except as established by a maritime
boundary treaty in force, or being provisionally applied by the United
States or, in the absence of such a treaty where the distance between
the United States and another nation is less than 400 nautical miles, a
line equidistant between the United States and the other nation.
Without affecting any Presidential Proclamation with regard to the
establishment of the United States territorial sea or Exclusive
Economic Zone, the inner boundary of that zone is--
(1) a line coterminous with the seaward boundary of each of
the several coastal States, as defined in 43 U.S.C. 1312;
(2) a line three marine leagues from the coastline of the
Commonwealth of Puerto Rico;
(3) a line three geographical miles from the coastlines of
American Samoa, the United States Virgin Islands, and Guam;
(4) for the Commonwealth of the Northern Mariana Islands--
(A) its coastline, until such time as the
Commonwealth of the Northern Mariana Islands is granted
authority by the United States to regulate all fishing
to a line seaward of its coastline, and
(B) upon the United States' grant of such
authority, the line established by such grant of
authority; and
(5) for any possession of the United States not referred to
in subparagraph (2), (3), or (4), the coastline of such
possession.
Nothing in this definition shall be construed as diminishing the
authority of the Department of Defense, the Department of the Interior
or any other Federal department or agency.
(d) The term ``lessee'' means any party to a lease, right-of-use
and easement, or right-of-way, or an approved assignment thereof,
issued pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C.
1331 et seq.
(e) The term ``marine species'' means finfish, mollusks,
crustaceans, marine algae, and all other forms of marine life,
excluding marine mammals and birds.
(f) The term ``offshore aquaculture'' means all activities,
including the operation of offshore aquaculture facilities, involved in
the propagation and rearing, or attempted propagation and rearing, of
marine species in the United States Exclusive Economic Zone.
(g) The term ``offshore aquaculture facility'' means: 1) an
installation or structure used, in whole or in part, for offshore
aquaculture; or 2) an area of the seabed or the subsoil used for
offshore aquaculture of living organisms belonging to sedentary
species.
(h) The term ``offshore aquaculture permit'' means an authorization
issued under section 4(b) to raise specified marine species in a
specific offshore aquaculture facility within a specified area of the
Exclusive Economic Zone.
(i) The term ``person'' means any individual (whether or not a
citizen or national of the United States), any corporation,
partnership, association, or other non-governmental entity (whether or
not organized or existing under the laws of any State), and State,
local or tribal government or entity thereof, and, except as otherwise
specified by the President in writing, the Federal Government or an
entity thereof, and, to the extent specified by the President in
writing, a foreign government or an entity thereof.
(j) The term ``Secretary'' means the Secretary of Commerce.
SEC. 4. OFFSHORE AQUACULTURE PERMITS.
(a) General.--
(1) The Secretary shall establish, through rulemaking, in
consultation as appropriate with other relevant Federal
agencies, coastal States, and regional fishery management
councils established under section 302 of the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C. 1852), a
process to make areas of the Exclusive Economic Zone available
to eligible persons for the development and operation of
offshore aquaculture facilities, which shall include:
(A) Procedures and criteria necessary to issue and
modify permits under this Act;
(B) Procedures to coordinate the offshore
aquaculture permitting process, and related siting,
operations, environmental protection, monitoring,
enforcement, research, and economic and social
activities, with similar activities administered by
other Federal agencies and coastal States;
(C) Consideration of the potential environmental,
social, economic, and cultural impacts of offshore
aquaculture and inclusion, where appropriate, of permit
conditions to address negative impacts;
(D) Public notice and opportunity for public
comment prior to issuance of offshore aquaculture
permits;
(E) Procedures to monitor and evaluate compliance
with the provisions of offshore aquaculture permits,
including the collection of biological, chemical and
physical oceanographic data, and social, production,
and economic data; and
(F) Procedures for transferring permits from the
original permit holder to a person meeting the
eligibility criteria in section 4(b)(2)(A) and able to
satisfy the requirements for bonds or other guarantees
prescribed under section 4(c)(3).
(2) The Secretary shall prepare an analysis under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.) with respect to the process for issuing permits.
(3) The Secretary shall periodically review the procedures
and criteria for issuance of offshore aquaculture permits and
modify them as appropriate, in consultation as appropriate with
other Federal agencies, the coastal States, and regional
fishery management councils, based on the best available
science.
(4) The Secretary shall consult as appropriate with other
Federal agencies and coastal States to identify the
environmental requirements that apply to offshore aquaculture
under existing laws and regulations. The Secretary shall
establish through rulemaking, in consultation with appropriate
Federal agencies, coastal States, and regional fishery
management councils established under section 302 of the
Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1852), additional environmental requirements to address
environmental risks and impacts associated with offshore
aquaculture, to the extent necessary. The environmental
requirements shall address, but are not limited to:
(A) risks to and impacts on natural fish stocks and
fisheries, including safeguards needed to conserve
genetic resources, to prevent or minimize the
transmission of disease or parasites to wild stocks,
and to prevent the escape of marine species that may
cause significant environmental harm;
(B) risks to and impacts on marine ecosystems;
biological, chemical and physical features of water
quality and habitat; marine species, marine mammals and
birds;
(C) cumulative effects of the aquaculture operation
and other aquaculture operations in the vicinity of the
proposed site;
(D) environmental monitoring, data archiving, and
reporting by the permit holder;
(E) requirements that marine species propagated and
reared through offshore aquaculture be species native
to the geographic region unless a scientific risk
analysis shows that the risk of harm to the marine
environment from the offshore culture of non-indigenous
or genetically modified marine species is negligible or
can be effectively mitigated; and
(F) maintaining record systems to track inventory
and movement of fish or other marine species in the
offshore aquaculture facility or harvested from such
facility, and, if necessary, tagging, marking, or
otherwise identifying fish or other marine species in
the offshore aquaculture facility or harvested from
such facility.
(5) The Secretary, in cooperation with other Federal
agencies, shall:
(A) Collect information needed to evaluate the
suitability of sites for offshore aquaculture; and
(B) Monitor the effects of offshore aquaculture on
marine ecosystems and implement such measures as may be
necessary to protect the environment. Measures may
include, but are not limited to, temporary or permanent
relocation of offshore aquaculture sites, a moratorium
on additional sites within a prescribed area, and other
appropriate measures as determined by the Secretary.
(b) Permits.--Subject to the provisions of subsection (e), the
Secretary may issue offshore aquaculture permits under such terms and
conditions as the Secretary shall prescribe. Permits issued under this
Act authorize the permit holder to conduct offshore aquaculture
consistent with the provisions of this Act, regulations issued under
this Act, any specific terms, conditions and restrictions applied to
the permit by the Secretary, and other applicable law.
(1) Procedures for issuance of permits.--
(A) The applicant for an offshore aquaculture
permit shall submit an application to the Secretary
specifying the proposed location and type of operation,
the marine species to be propagated or reared, or both,
at the offshore aquaculture facility, and other design,
construction, and operational information, as specified
by regulation.
(B) Within 120 days after determining that a permit
application is complete and has satisfied all
applicable statutory and regulatory requirements, as
specified by regulation, the Secretary shall issue or
deny the permit. If the Secretary is unable to issue or
deny a permit within this time period, the Secretary
shall provide written notice to the applicant
indicating the reasons for the delay and establishing a
reasonable timeline for issuing or denying the permit.
(2) Permit conditions.--
(A) An offshore aquaculture permit holder must (i)
be a resident of the United States, (ii) be a
corporation, partnership or other entity organized and
existing under the laws of a State or the United
States, or (iii) if neither (i) or (ii) applies, to the
extent required by the Secretary by regulation after
coordination with the Secretary of State, waive any
immunity, and consent to the jurisdiction of the United
States and its courts, for matters arising in relation
to such permit, and appoint and maintain agents within
the United States who are authorized to receive and
respond to any legal process issued in the United
States with respect to such permit holder.
(B) Subject to the provisions of subsection (e),
the Secretary shall establish the terms, conditions,
and restrictions that apply to offshore aquaculture
permits, and shall specify in the permits the duration,
size, and location of the offshore aquaculture
facility.
(C) Except for projects involving pilot-scale
testing or farm-scale research on aquaculture science
and technologies and offshore aquaculture permits
requiring concurrence of the Secretary of the Interior
under subsection 4(e)(1), the permit shall have a
duration of 20 years, renewable thereafter at the
discretion of the Secretary in up to 20-year
increments. The duration of permits requiring
concurrence of the Secretary of the Interior under
subsection 4(e)(1) shall be developed in consultation
as appropriate with the Secretary of the Interior,
except that any such permit shall expire no later than
the date that the lessee, or the lessee's operator,
submits to the Secretary of the Interior a final
application for the decommissioning and removal of an
existing facility upon which an offshore aquaculture
facility is located.
(D) At the expiration or termination of an offshore
aquaculture permit for any reason, the permit holder
shall remove all structures, gear, and other property
from the site, and take other measures to restore the
site as may be prescribed by the Secretary.
(E) Failure to begin offshore aquaculture
operations within a reasonable period of time, or
prolonged interruption of offshore aquaculture
operations, may result in the revocation of the permit.
(3) If the Secretary determines that issuance of a permit
is not in the national interest, the Secretary may decline to
issue such a permit or may impose such conditions as necessary
to address such concerns.
(c) Fees and Other Payments.--
(1) The Secretary is authorized to establish, through
regulations, application fees and annual permit fees. Such fees
shall be deposited as offsetting collections in the Operations,
Research, and Facilities (ORF) account. Fees may be collected
and made available only to the extent provided in advance in
appropriation Acts.
(2) The Secretary may reduce or waive applicable fees or
other payments established under this section for facilities
used primarily for research.
(3) The Secretary shall require the permit holder to post a
bond or other form of financial guarantee, in an amount to be
determined by the Secretary as sufficient to cover any unpaid
fees, the cost of removing an offshore aquaculture facility at
the expiration or termination of an offshore aquaculture
permit, and other financial risks as identified by the
Secretary.
(d) Compatibility With Other Uses.--
(1) The Secretary shall consult as appropriate with other
Federal agencies, coastal States, and regional fishery
management councils to ensure that offshore aquaculture for
which a permit is issued under this section is compatible with
the use of the Exclusive Economic Zone for navigation, fishing,
resource protection, recreation, national defense (including
military readiness), mineral exploration and development, and
other activities.
(2) The Secretary shall not authorize permits for new
offshore aquaculture facilities within 12 miles of the
coastline of a coastal State if that coastal State has
submitted a written notice to the Secretary that the coastal
State opposes such activities. This provision will not apply to
permit applications received by the Secretary prior to the date
the notice is received from a coastal State. A coastal State
that transmitted such notice to the Secretary under this
paragraph may revoke that notice in writing at any time.
(3) Federal agencies implementing this Act, persons subject
to this Act, and coastal States seeking to review permit
applications under this Act shall comply with the applicable
section of the Coastal Zone Management Act (i.e., 16 U.S.C.
1456(c)(1), (c)(3)(A), (c)(3)(B) or (d)) and its corresponding
Federal regulations.
(4) Offshore aquaculture conducted in accordance with
permits issued pursuant to this Act is excluded from the
definition of ``fishing'' in the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1802(15)). The
Secretary shall ensure, to the extent practicable, that
offshore aquaculture does not interfere with conservation and
management measures promulgated under the Magnuson-Stevens
Fishery Conservation and Management Act.
(5) The Secretary may promulgate regulations that the
Secretary finds to be reasonable and necessary to protect
offshore aquaculture facilities, and, where appropriate, shall
request that the Secretary of the department in which the Coast
Guard is operating establish navigational safety zones around
such facilities. In addition, in the case of any offshore
aquaculture facility described in section 4(e)(1), the
Secretary of the department in which the Coast Guard is
operating shall consult with the Secretary of the Interior
before designating such a zone.
(6) After consultation with the Secretary, the Secretary of
State, and the Secretary of Defense, the Secretary of the
department in which the Coast Guard is operating may designate
a zone of appropriate size around and including any offshore
aquaculture facility for the purpose of navigational safety. In
such a zone, no installations, structures, or uses will be
allowed that are incompatible with the operation of the
offshore aquaculture facility. The Secretary of the department
in which the Coast Guard is operating may define, by
rulemaking, activities that are allowed within such a zone.
(7)(A) Subject to paragraph (B), if the Secretary, after
consultation with Federal agencies as appropriate and after
affording the permit holder notice and an opportunity to be
heard, determines that suspension, modification, or revocation
of a permit is in the national interest, the Secretary may
suspend, modify, or revoke such permit.
(B) If the Secretary determines that an
emergency exists that poses a risk to the
safety of humans, to the marine environment or
marine species, or to the security of the
United States and that requires suspension,
modification, or revocation of a permit, the
Secretary may suspend, modify, or revoke the
permit for such time as the Secretary may
determine necessary to meet the emergency. The
Secretary shall afford the permit holder a
prompt post-suspension or post-modification
opportunity to be heard regarding the
suspension, modification, or revocation.
(8) Permits issued under this Act do not supersede or
substitute for any other authorization required under
applicable Federal or State law or regulation.
(e) Actions Affecting the Outer Continental Shelf.--
(1) The Secretary shall obtain the concurrence of the
Secretary of the Interior on permits for offshore aquaculture
facilities located:
(A) on leases, right-of-use and easements, or
rights of way authorized or permitted under the Outer
Continental Shelf Lands Act, as amended (43 U.S.C.
1331, et seq.), or
(B) within 1 mile of any other facility permitted
or for which a plan has been approved under the Outer
Continental Shelf Lands Act.
(2) Offshore aquaculture may not be located on facilities
subject to section 4(e)(1)(A) without the prior consent of the
lessee, its designated operator, and owner of the facility.
(3) The Secretary of the Interior shall review and approve
any agreement between a lessee, designated operator, and owner
of a facility subject to this subsection and a prospective
aquaculture operator to ensure that it is consistent with the
Federal lease terms, Department of the Interior regulations,
and the Secretary of the Interior's role in the protection of
the marine environment, property, or human life or health. An
agreement under this subsection shall be part of the
information reviewed pursuant to the Coastal Zone Management
Act review process described in subsection 4(e)(4) and shall
not be subject to a separate Coastal Zone Management Act
review.
(4) Coordinated Coastal Zone Management Act review
(A) If the applicant for an offshore aquaculture
facility that will utilize a facility subject to this
subsection is required to submit to a coastal State a
consistency certification for its aquaculture
application under section 307(c)(3)(A) of the Coastal
Zone Management Act (16 U.S.C. 1456(c)(3)(A)), the
coastal State's review under the Coastal Zone
Management Act and corresponding Federal regulations
shall also include any modification to a lessee's
approved plan or other document for which a consistency
certification would otherwise be required under
applicable Federal regulations, including changes to
its plan for decommissioning any facilities, resulting
from or necessary for the issuance of the offshore
aquaculture permit, provided that information related
to such modifications or changes is received by the
coastal State at the time the coastal State receives
the offshore aquaculture permit applicant's consistency
certification. In this case, lessees are not required
to submit a separate consistency certification for any
such modification or change under section 307(c)(3)(B)
of the Coastal Zone Management Act (16 U.S.C.
1456(c)(3)(B)) and the coastal State's concurrence or
objection, or presumed concurrence, under section
307(c)(3)(A) of the Coastal Zone Management Act (16
U.S.C. 1456(c)(3)(A)) in a consistency determination
for the offshore aquaculture permit, shall apply to
both the offshore aquaculture permit and to any related
modifications or changes to a lessee's plan approved
under the Outer Continental Shelf Lands Act.
(B) If a coastal State is not authorized by section
307(c)(3)(A) of the Coastal Zone Management Act (16
U.S.C. 1456(c)(3)(A)) and corresponding Federal
regulations to review an offshore aquaculture
application submitted under this Act, then any
modifications or changes to a lessee's approved plan or
other document requiring approval from the Department
of the Interior, shall be subject to coastal State
review pursuant to the requirements of section
307(c)(3)(B) of the Coastal Zone Management Act (16
U.S.C. 1456(c)(3)(B)), if a consistency certification
for those modifications or changes is required under
applicable Federal regulations.
(5) For offshore aquaculture located on facilities subject
to this subsection, the aquaculture permit holder and all
parties that are or were lessees of the lease on which the
facilities are located during the term of the offshore
aquaculture permit shall be jointly and severally liable for
the removal of any construction or modifications related to
aquaculture operations if the aquaculture permit holder fails
to do so and bonds established under this Act for aquaculture
operations prove insufficient to cover those obligations. This
subsection does not affect obligations to decommission
facilities under the Outer Continental Shelf Lands Act.
(6) For aquaculture projects or operations subject to this
subsection, the Secretary of the Interior is authorized to:
(A) Promulgate such rules and regulations as are
necessary and appropriate to carry out the provisions
of this subsection;
(B) Require and enforce such additional terms or
conditions as the Secretary of the Interior deems
necessary to protect the marine environment, property,
or human life or health to ensure the compatibility of
aquaculture operations with all activities for which
permits have been issued under the Outer Continental
Shelf Lands Act;
(C) Issue orders to the offshore aquaculture permit
holder to take any action the Secretary of the Interior
deems necessary to ensure safe operations on the
facility to protect the marine environment, property,
or human life or health. Failure to comply with the
Secretary of the Interior's orders will be deemed to
constitute a violation of the Outer Continental Shelf
Lands Act; and
(D) Enforce all requirements contained in such
regulations, lease terms and conditions and orders
pursuant to the Outer Continental Shelf Lands Act.
SEC. 5. RESEARCH AND DEVELOPMENT.
(a) In consultation as appropriate with other Federal agencies, the
Secretary may establish and conduct an integrated, multidisciplinary,
scientific research and development program to further marine
aquaculture technologies that are compatible with the protection of
marine ecosystems.
(b) The Secretary is authorized to conduct research and development
in partnership with offshore aquaculture permit holders.
(c) The Secretary, in collaboration with the Secretary of
Agriculture, shall conduct research to reduce the use of wild fish in
aquaculture feeds, including but not limited to the substitution of
seafood processing wastes, cultured marine algae and microbial sources
of nutrients important for human health and nutrition, agricultural
crops, and other products.
SEC. 6. ADMINISTRATION.
(a) The Secretary shall promulgate such regulations as are
necessary and appropriate to carry out the provisions of this Act. The
Secretary may at any time amend such regulations, and such regulations
shall, as of their effective date, apply to all operations conducted
pursuant to permits issued under the provisions of this Act, regardless
of the date of the issuance of such permit.
(b) The Secretary shall have the authority to enter into and
perform such contracts, leases, grants, or cooperative agreements as
may be necessary to carry out the purposes of this Act and on such
terms as the Administrator of the National Oceanic and Atmospheric
Administration deems appropriate.
(c) For purposes related to the enforcement of this Act, the
Secretary is authorized to use, with their consent and with or without
reimbursement, the land, services, equipment, personnel, and facilities
of any department, agency or instrumentality of the United States, or
of any state, local government, Indian tribal government, Territory or
possession, or of any political subdivision thereof, or of any foreign
government or international organization.
(d) Authority to Utilize Grant Funds
(1) Except as provided in paragraph (2), the Secretary is
authorized to apply for, accept, and obligate research grant
funding from any Federal source operating competitive grant
programs where such funding furthers the purpose of this Act.
(2) The Secretary may not apply for, accept, or obligate
any grant funding under paragraph (1) for which the granting
agency lacks authority to grant funds to Federal agencies, or
for any purpose or subject to conditions that are prohibited by
law or regulation.
(3) Appropriated funds may be used to satisfy a requirement
to match grant funds with recipient agency funds, except that
no grant may be accepted that requires a commitment in advance
of appropriations.
(4) Funds received from grants shall be deposited in the
National Oceanic and Atmospheric Administration account that
serves to accomplish the purpose for which the grant was
awarded.
(e) Nothing in this Act shall be construed to displace, supersede,
or limit the jurisdiction, responsibilities or rights of any Federal or
State agency, or Indian Tribe or Alaska Native organization, under any
Federal law or treaty.
(f) The Constitution, laws, and treaties of the United States shall
apply to an offshore aquaculture facility located in the Exclusive
Economic Zone for which a permit has been issued or is required under
this Act and to activities in the Exclusive Economic Zone connected,
associated, or potentially interfering with the use or operation of
such facility, in the same manner as if such facility were an area of
exclusive Federal jurisdiction located within a State. Nothing in this
Act shall be construed to relieve, exempt, or immunize any person from
any other requirement imposed by an applicable Federal law, regulation,
or treaty. Nothing in this Act shall be construed to confer citizenship
to a person by birth or through naturalization or to entitle a person
to avail himself of any law pertaining to immigration, naturalization,
or nationality.
(g) The law of the nearest adjacent coastal State, now in effect or
hereafter adopted, amended, or repealed, is declared to be the law of
the United States, and shall apply to any offshore aquaculture facility
for which a permit has been issued pursuant to this Act, to the extent
applicable and not inconsistent with any provision or regulation under
this Act or other Federal laws and regulations now in effect or
hereafter adopted, amended, or repealed. All such applicable laws shall
be administered and enforced by the appropriate officers and courts of
the United States. For purposes of this subsection, the nearest
adjacent coastal State shall be that State whose seaward boundaries, if
extended beyond 3 nautical miles, would encompass the site of the
offshore aquaculture facility. State taxation laws shall not apply to
offshore aquaculture facilities in the Exclusive Economic Zone.
SEC. 7. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Secretary
$4,052,000 in fiscal year 2008 and thereafter such sums as may be
necessary for purposes of carrying out the provisions of this Act.
SEC. 8. UNLAWFUL ACTIVITIES.
It is unlawful for any person--
(a) to falsify any information required to be reported,
communicated, or recorded pursuant to this Act or any regulation or
permit issued under this Act, or to fail to submit in a timely fashion
any required information, or to fail to report to the Secretary
immediately any change in circumstances that has the effect of
rendering any such information false, incomplete, or misleading;
(b) to engage in offshore aquaculture within the Exclusive Economic
Zone of the United States or operate an offshore aquaculture facility
within the Exclusive Economic Zone of the United States, except
pursuant to a valid permit issued under this Act;
(c) to refuse to permit an authorized officer to conduct any lawful
search or lawful inspection in connection with the enforcement of this
Act or any regulation or permit issued under this Act;
(d) to forcibly assault, resist, oppose, impede, intimidate, or
interfere with an authorized officer in the conduct of any search or
inspection in connection with the enforcement of this Act or any
regulation or permit issued under this Act;
(e) to resist a lawful arrest or detention for any act prohibited
by this section;
(f) to interfere with, delay, or prevent, by any means, the
apprehension, arrest, or detection of another person, knowing that such
person has committed any act prohibited by this section;
(g) to import, export, sell, receive, acquire or purchase in
interstate or foreign commerce any marine species in violation of this
Act or any regulation or permit issued under this Act;
(h) upon the expiration or termination of any aquaculture permit
for any reason, fail to remove all structures, gear, and other property
from the site, or take other measures, as prescribed by the Secretary,
to restore the site;
(i) to violate any provision of this Act, any regulation
promulgated under this Act, or any term or condition of any permit
issued under this Act; or
(j) to attempt to commit any act described in subsections (a), (b),
(g), (h) or (i).
SEC. 9. ENFORCEMENT PROVISIONS.
(a) Duties of Secretaries.--Subject to sections 4(e)(6)(B) and (D),
this Act shall be enforced by the Secretary and the Secretary of the
department in which the Coast Guard is operating.
(b) Powers of Enforcement.--
(1) Any officer who is authorized pursuant to subsection
(a) of this section by the Secretary or the Secretary of the
department in which the Coast Guard is operating to enforce the
provisions of this Act may--
(A) with or without a warrant or other process--
(i) arrest any person, if the officer has
reasonable cause to believe that such person
has committed or is committing an act
prohibited by section 8 of this Act;
(ii) search or inspect any offshore
aquaculture facility and any related land-based
facility;
(iii) seize any offshore aquaculture
facility (together with its equipment, records,
furniture, appurtenances, stores, and cargo),
and any vessel or vehicle, used or employed in
aid of, or with respect to which it reasonably
appears that such offshore aquaculture facility
was used or employed in aid of, the violation
of any provision of this Act or any regulation
or permit issued under this Act;
(iv) seize any marine species (wherever
found) retained, in any manner, in connection
with or as a result of the commission of any
act prohibited by section 8 of this Act;
(v) seize any evidence related to any
violation of any provision of this Act or any
regulation or permit issued under this Act;
(B) execute any warrant or other process issued by
any court of competent jurisdiction; and
(C) exercise any other lawful authority.
(2) Any officer who is authorized pursuant to subsection
(a) of this section by the Secretary or the Secretary of the
department in which the Coast Guard is operating to enforce the
provisions of this Act may make an arrest without a warrant for
(i) an offense against the United States committed in his
presence, or (ii) for a felony cognizable under the laws of the
United States, if he has reasonable grounds to believe that the
person to be arrested has committed or is committing a felony.
Any such authorized person may execute and serve a subpoena,
arrest warrant or search warrant issued in accordance with Rule
41 of the Federal Rules of Criminal Procedure, or other warrant
of civil or criminal process issued by any officer or court of
competent jurisdiction for enforcement of the Act, or any
regulation or permit issued under this Act.
(c) Issuance of Citations.--If any authorized officer finds that a
person is engaging in or has engaged in offshore aquaculture in
violation of any provision of this Act, such officer may issue a
citation to that person.
(d) Liability for Costs.--Any person who violates this Act, or a
regulation or permit issued under this Act, shall be liable for the
cost incurred in storage, care, and maintenance of any marine species
or other property seized in connection with the violation.
SEC. 10. CIVIL ENFORCEMENT AND PERMIT SANCTIONS.
(a) Civil Administrative Penalties.--
(1) Any person who is found by the Secretary, after notice
and opportunity for a hearing in accordance with section 554 of
Title 5, United States Code, to have violated this Act, or a
regulation or permit issued under this Act, shall be liable to
the United States for a civil penalty. The amount of the civil
penalty under this paragraph shall not exceed $200,000 for each
violation. Each day of a continuing violation shall constitute
a separate violation.
(2) Compromise or other action by the secretary.--The
Secretary may compromise, modify, or remit, with or without
conditions, any civil administrative penalty which is or may be
imposed under this section and that has not been referred to
the Attorney General for further enforcement action.
(b) Civil Judicial Penalties.--Any person who violates any
provision of this Act, or any regulation or permit issued thereunder,
shall be subject to a civil penalty not to exceed $250,000 for each
such violation. Each day of a continuing violation shall constitute a
separate violation. The Attorney General, upon the request of the
Secretary, may commence a civil action in an appropriate district court
of the United States, and such court shall have jurisdiction to award
civil penalties and such other relief as justice may require. In
determining the amount of a civil penalty, the court shall take into
account the nature, circumstances, extent, and gravity of the
prohibited acts committed and, with respect to the violator, the degree
of culpability, any history of prior violations and such other matters
as justice may require. In imposing such penalty, the district court
may also consider information related to the ability of the violator to
pay.
(c) Permit Sanctions.--
(1) In any case in which--
(A) an offshore aquaculture facility has been used
in the commission of an act prohibited under section 8
of this Act;
(B) the owner or operator of an offshore
aquaculture facility or any other person who has been
issued or has applied for a permit under section 4 of
this Act has acted in violation of section 8 of this
Act; or
(C) any amount in settlement of a civil forfeiture
imposed on an offshore aquaculture facility or other
property, or any civil penalty or criminal fine imposed
under this Act or imposed on any other person who has
been issued or has applied for a permit under any
fishery resource statute enforced by the Secretary, has
not been paid and is overdue, the Secretary may--
(i) revoke any permit issued with respect
to such offshore aquaculture facility or
applied for by such a person under this Act,
with or without prejudice to the issuance of
subsequent permits;
(ii) suspend such permit for a period of
time considered by the Secretary to be
appropriate;
(iii) deny such permit; or
(iv) impose additional conditions and
restrictions on such permit.
(2) In imposing a sanction under this subsection, the
Secretary shall take into account--
(A) the nature, circumstances, extent, and gravity
of the prohibited acts for which the sanction is
imposed; and
(B) with respect to the violator, the degree of
culpability, any history of prior violations, and such
other matters as justice may require.
(3) Transfer of ownership of an offshore aquaculture
facility, by sale or otherwise, shall not extinguish any permit
sanction that is in effect or is pending at the time of
transfer of ownership. Before executing the transfer of
ownership of an offshore aquaculture facility, by sale or
otherwise, the owner shall disclose in writing to the
prospective transferee the existence of any permit sanction
that will be in effect or pending with respect to the offshore
aquaculture facility at the time of the transfer. The Secretary
may waive or compromise a sanction in the case of a transfer
pursuant to court order.
(4) In the case of any permit that is suspended under this
subsection for nonpayment of a civil penalty or criminal fine,
the Secretary shall reinstate the permit upon payment of the
penalty or fine and interest thereon at the prevailing rate.
(5) No sanctions shall be imposed under this subsection
unless there has been prior opportunity for a hearing on the
facts underlying the violation for which the sanction is
imposed, either in conjunction with a civil penalty proceeding
under this section or otherwise.
(d) Injunctive Relief.--Upon the request of the Secretary, the
Attorney General of the United States is authorized to commence a civil
action for appropriate relief, including a permanent or temporary
injunction, for any violation of any provision of this Act, or
regulation or permit issued under this Act.
(e) Hearing.--For the purposes of conducting any investigation or
hearing under this section or any other statute administered by the
National Oceanic and Atmospheric Administration which is determined on
the record in accordance with the procedures provided for under section
554 of Title 5, the Secretary may issue subpoenas for the attendance
and testimony of witnesses and the production of relevant papers,
books, and documents, and may administer oaths. Witnesses summoned
shall be paid the same fees and mileage that are paid to witnesses in
the courts of the United States. In case of contempt or refusal to obey
a subpoena served upon any person pursuant to this subsection, the
district court of the United States for any district in which such
person is found, resides, or transacts business, upon application by
the United States and after notice to such person, shall have
jurisdiction to issue an order requiring such person to appear and give
testimony before the Secretary or to appear and produce documents
before the Secretary, or both, and any failure to obey such order of
the court may be punished by such court as a contempt thereof. Nothing
in this Act shall be construed to grant jurisdiction to a district
court to entertain an application for an order to enforce a subpoena
issued by the Secretary of Commerce to the Federal Government or any
entity thereof.
(f) Jurisdiction.--The United States district courts shall have
original jurisdiction of any action under this section arising out of
or in connection with the construction or operation of aquaculture
facilities, and proceedings with respect to any such action may be
instituted in the judicial district in which any defendant resides or
may be found, or in the judicial district of the adjacent coastal State
nearest the place where the cause of action arose. For the purpose of
this section, American Samoa shall be included within the judicial
district of the District Court of the United States for the District of
Hawaii. Each violation shall be a separate offense and the offense
shall be deemed to have been committed not only in the district where
the violation first occurred, but also in any other district as
authorized by law.
(g) Collection.--If any person fails to pay an assessment of a
civil penalty after it has become a final and unappealable order, or
after the appropriate court has entered final judgment in favor of the
Secretary, the matter may be referred to the Attorney General, who may
recover the amount (plus interest at currently prevailing rates from
the date of the final order). In such action the validity, amount and
appropriateness of the final order imposing the civil penalty shall not
be subject to review. Any person who fails to pay, on a timely basis,
the amount of an assessment of a civil penalty shall be required to
pay, in addition to such amount and interest, attorney's fees and costs
for collection proceedings and a quarterly nonpayment penalty for each
quarter during which such failure to pay persists. Such nonpayment
penalty shall be in an amount equal to 20 percent of the aggregate
amount of such persons penalties and nonpayment penalties which are
unpaid as of the beginning of such quarter.
(h) Nationwide Service of Process.--In any action by the United
States under this title, process may be served in any district where
the defendant is found, resides, transacts business or has appointed an
agent for the service of process, and for civil cases may also be
served in a place not within the United States in accordance with Rule
4 of the Federal Rules of Civil Procedure.
SEC. 11. CRIMINAL OFFENSES.
(a) Any person (other than a foreign government or any entity of
such government) who knowingly commits an act prohibited by subsections
8(c), (d), (e), or (f) of the Act, shall be imprisoned for not more
than five years or shall be fined not more than $500,000 for
individuals or $1,000,000 for an organization, or both; except that if
in the commission of any such offense the individual uses a dangerous
weapon, engages in conduct that causes bodily injury to any officer
authorized to enforce the provisions of this title, or places any such
officer in fear of imminent bodily injury, the maximum term of
imprisonment is not more than ten years.
(b) Any person (other than a foreign government or any entity of
such government) who knowingly violates any other provision of section
8, except subsections 8(c), (d), (e) or (f), of the Act, or any
provision of any regulation promulgated pursuant to this title or any
permit issued under this title, shall be imprisoned for not more than
five years, or shall be fined not more than $500,000 for an individual
or $1,000,000 for an organization, or both.
(c) The United States district courts shall have original
jurisdiction of any action arising under this section out of or in
connection with the construction or operation of aquaculture
facilities, and proceedings with respect to any such action may be
instituted in the judicial district in which any defendant resides or
may be found. For the purpose of this section, American Samoa shall be
included within the judicial district of the District Court of the
United States for the District of Hawaii. Each violation shall be a
separate offense and the offense shall be deemed to have been committed
not only in the district where the violation first occurred, but also
in any other district as authorized under law.
SEC. 12. FORFEITURES.
(a) Criminal Forfeiture.--A person who is convicted of an offense
in violation of section 11 of this Act shall forfeit to the United
States--
(1) any property, real or personal, constituting or
traceable to the gross proceeds obtained, or retained, as a
result of the offense including, without limitation, any marine
species (or the fair market value thereof) taken or retained in
connection with or as a result of the offense; and
(2) any property, real or personal, used or intended to be
used to commit or to facilitate the commission of the offense,
including, without limitation, any offshore aquaculture
facility or vessel, including its structure, equipment,
furniture, appurtenances, stores, and cargo, and any vehicle or
aircraft.
Pursuant to title 28, United States Code, section 2461(c), the
provisions of section 413 of the Controlled Substances Act (21 U.S.C.
853) with the exception of subsection (d) of that section, shall apply
to criminal forfeitures under this section.
(b) Civil Forfeiture.--The following shall be subject to forfeiture
to the United States and no property right shall exist in them:
(1) any property, real or personal, constituting or
traceable to the gross proceeds obtained, or retained, as a
result of a violation of any provision of section 8 or
subsection 4(b)(2)(D) of this Act, including, without
limitation, any marine species (or the fair market value
thereof) taken or retained in connection with or as a result of
the violation; and
(2) any property, real or personal, used or intended to be
used to commit or to facilitate the commission of any such
violation, including, without limitation, any offshore
aquaculture facility or vessel, including its structure,
equipment, furniture, appurtenances, stores, and cargo, and any
vehicle or aircraft.
Civil forfeitures under this section shall be governed by the
procedures set forth in title 18, United States Code, Chapter 46.
(c) Rebuttable Presumption.--In any criminal or civil forfeiture
proceeding under this section, there is a rebuttable presumption that
all marine species found within an offshore aquaculture facility and
seized in connection with a violation of section 8 of this Act were
taken or retained in violation of this Act.
SEC. 13. SEVERABILITY AND JUDICIAL REVIEW.
(a) Severability.--If any provision of this chapter or the
application thereof to any person or circumstances is held invalid, the
validity of the remainder of this chapter and of the application of
such provision to other persons and circumstances shall not be affected
thereby.
(b) Judicial Review.--
(1) In general.--Judicial review of any action taken by the
Secretary under this chapter shall be in accordance with
sections 701 through 706 of Title 5, except that--
(A) review of any final agency action of the
Secretary taken pursuant to section 11(a) or (c) of
this title may be had only by the filing of a complaint
by an interested person in the United States District
Court for the appropriate district; any such complaint
must be filed within 30 days of the date such final
agency action is taken; and
(B) review of all other final agency actions of the
Secretary under this chapter may be had only by the
filing of a petition for review by an interested person
in the Circuit Court of Appeals of the United States
for the Federal judicial district in which such person
resides or transacts business which is directly
affected by the action taken; such petition shall be
filed within 120 days from the date such final action
is taken.
(2) Limitation of judicial review.--Final agency action
with respect to which review could have been obtained under
paragraph (1)(B) of this subsection shall not be subject to
judicial review in any civil or criminal proceeding for
enforcement.
(3) Awards of litigation costs.--In any judicial proceeding
under paragraph (1) of this subsection, the court may award
costs of litigation (including reasonable attorney and expert
witness fees) to any prevailing party whenever it determines
that such award is appropriate.
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