II 110th CONGRESS 2d Session S. 3351 IN THE SENATE OF THE UNITED STATES July 28, 2008 Mr. Biden (for himself, Mr. Grassley, and Mrs. Feinstein) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To enhance drug trafficking interdiction by creating a Federal felony for operating or embarking in a submersible or semi-submersible vessel without nationality and on an international voyage.

1.

Short title

This Act may be cited as the Drug Trafficking Interdiction Assistance Act of 2008.

2.

Findings

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.

3.

Operation of submersible or semi-submersible vessel without nationality

(a)

In general

Chapter 111 of title 18 is amended by adding at the end the following new section:

2285.

Operation of submersible or semi-submersible vessel without nationality

(a)

Offenses

(1)

In general

Whoever knowingly or intentionally operates 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 punished as prescribed in subsection (h). (2)

Attempts and conspiracies

Whoever attempts or conspires to violate this section shall be punished as prescribed in subsection (h). (b)

Definitions

In this section: (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 watercraft that is capable of operating completely below the surface of the water, including both manned and unmanned watercraft. (3)

Vessel without nationality

The term vessel without nationality has the same meaning as section 70502(d) of title 46, United States Code. (4)

Evade detection

The term evade detection includes the indicia in section 70507 (b)(1)(A), (E), (F), (G), (b)(4), (b)(5), and (b)(6) of title 46, United States Code. (c)

Extraterritorial jurisdiction

There is extraterritorial Federal jurisdiction over the offenses described in this section, including an attempt or conspiracy to commit such 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 defense

(1)

In general

It is an affirmative defense to a prosecution under this section, which the defendant shall prove by a preponderance of the evidence, that any submersible or semi-submersible vessel that the defendant operated by any means or embarked, 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 a 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 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, United States Code, apply to this section. (h)

Penalties

A person violating this section shall be fined under this title, imprisoned not more than 15 years, or both.

. (b)

Conforming amendment

The table of sections for chapter 111 of title 18, United States Code, is amended by adding at the end the following: Sec. 2285. Operation of submersible or semi-submersible vessel without nationality. .

4.

Directive to the United States sentencing commission

(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 or intentionally operating by any means or embarking in any submersible or semi-submersible vessel as defined in section 3. (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 offenses described in section 3 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 3 to facilitate other felonies; (B)the repeated use of submersible or semi-submersible vessel described in section 3 to facilitate other felonies, including whether such use is part of an ongoing commercial organization or enterprise; (C)whether the use of submersible or semi-submersible vessel involves a pattern of continued and flagrant violations; (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) currently 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.