Short title

This Act may be cited as the

Drug Trafficking Vessel Interdiction Act of 2008

Findings and declarations

Congress finds and declares that operating or embarking in a submersible 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.

Operation of submersible 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 or semi-submersible vessel without nationality

(a)

Offense

Whoever knowingly operates, or attempts or conspires to operate, by any means, or embarks in any submersible 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)

Definitions

In this section— (1) the term submersible vessel means a watercraft that is capable of operating completely below the surface of the water, and includes manned and unmanned watercraft; (2)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, and includes manned or unmanned watercraft; (3)the term vessel without nationality has the same meaning given that term in section 70502(d) of title 46; (4)the term evade detection includes the indicia set forth in section 70507(b)(1)(A), (E), (F), (G), (b)(4), (5), and (6) of title 46; and (5)the term vessel of the United States has the same meaning given that term in section 70502(b) of title 46. (c)

Extraterritorial Jurisdiction

There is extraterritorial Federal jurisdiction over an offense under this section, including an attempt or conspiracy to commit such an offense. (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 this section, which the defendant has the burden to prove by a preponderance of the evidence, that any submersible or semi-submersible vessel that the defendant operated by any means or embarked in at the time of the offense— (A)was 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)was classed by and designed in accordance with the rules of a classification society; (C)was lawfully operated in government-regulated or licensed activity, including commerce, research, or exploration; or (D)was equipped with and using an operable automatic identification system, vessel monitoring system, or a 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 research or exploration. (f)

Federal Activities

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 this section.

(b)

Clerical Amendment

The table of sections at the beginning of chapter 111 of title 18, United States Code, is amended by adding at the end the following new item:

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

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 or semi-submersible vessel as defined in 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 or semi-submersible vessels described in section 2285 of title 18, United States Code, to facilitate other felonies; (B)the repeated use of a submersible or semi-submersible vessel described in section 2285 of title 18, United States Code, to facilitate other felonies, including whether such use is part of an ongoing commercial 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 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.