118 HR 6447 IH: Saving Natural Ecosystems and Marine Organisms Act
U.S. House of Representatives
2023-11-17
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I
118th CONGRESS
1st Session
H. R. 6447
IN THE HOUSE OF REPRESENTATIVES
November 17, 2023
Mr. Case (for himself and Mr. Huffman) 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 prohibit certain actions with respect to certain marine reef species, and for other purposes.
1.

Short title
This Act may be cited as the “Saving Natural Ecosystems and Marine Organisms Act” or the “Saving NEMO Act”.
2.

Prohibition with respect to certain marine reef species
(a)

Designation of covered coral reef species
(1)

In general
The Secretary of the Interior shall designate as a covered coral reef species—
(A)
any marine reef species that is listed in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora—
(i)
as of the effective date of this section; and
(ii)
after the effective date of this section, unless the Secretary of the Interior, in consultation with the Secretary of Commerce, finds, not later than 90 days after 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 the coral reef ecosystem of such species; and
(B)
any marine reef species the take, import, or export of which the Secretary of the Interior and the Secretary of Commerce jointly determine, after notice and opportunity for public comment—
(i)
presents a substantial risk of harm to the sustainability of such species or the coral reef ecosystem of such species; or
(ii)
results in high mortality rates for individuals of such species due to poor survivorship in transport or captivity.
(2)

Removal of designation
(A)

In general
The Secretary of the Interior may remove the designation of a species as a covered coral reef species if the Secretary determines that such removal does not represent a substantial risk of harm to the sustainability of such species or the coral reef ecosystem of such species.
(B)

Role of Secretary of Commerce
In carrying out subparagraph (A), the Secretary of the Interior shall consult with the Secretary of Commerce with respect to a covered coral reef species described in paragraph (1)(A) and act jointly with the Secretary of Commerce with respect to a covered coral reef species described in subparagraph (1)(B).
(b)

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

Exceptions
(1)

In general
Subsection (b) does not apply with respect to an individual of a covered coral reef species that is—
(A)
taken in accordance with a qualified scientifically-based management plan for such covered coral reef species, as determined by the appropriate Secretary;
(B)
a product of a qualified cooperative breeding program for such covered coral reef species, as determined by the appropriate Secretary;
(C)
a product of a qualified aquaculture or mariculture facility, as determined by the appropriate Secretary;
(D)
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; or
(E)
taken pursuant to—
(i)
an applicable incidental take permit issued under section 10(a)(1)(B) of the Endangered Species Act of 1973 (16 U.S.C. 1539(a)(1)(B)); or
(ii)
an applicable permit issued by a country other than the United States if such permit is equivalent to an incidental take permit described in clause (i), as determined by the appropriate Secretary.
(2)

Destructive collection practices
The exceptions described in paragraph (1) do not apply with respect to an individual of a covered coral reef species that is, as determined by the appropriate Secretary—
(A)
taken through the use of any destructive collection practice; or
(B)
imported or exported without a certification by the importer or exporter that such individual to be imported or exported was not taken through the use of any destructive collection practice.
(d)

Enforcement
(1)

Civil penalties
The Secretary of the Interior or the Secretary of Commerce, upon finding a violation of subsection (b), may require the person responsible for such violation to pay a civil penalty in an amount determined under a schedule of penalties jointly issued by the Secretary of the Interior and the Secretary of Commerce, but which does not exceed $25,000 for each violation, and which takes into account—
(A)
the nature of the violation involved;
(B)
the monetary value of each individual of a covered coral reef species that is the subject of the violation involved;
(C)
any previous violation of subsection (b) by the person; and
(D)
such other factors as the Secretary of the Interior or the Secretary of Commerce determines appropriate.
(2)

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 subsection (b).
(3)

Criminal penalties
(A)

In general
Any person that knowingly violates subsection (b) shall be fined in accordance with title 18, United States Code, imprisoned for not more than 6 months, or both.
(B)

Persons engaged in business
Any person engaged in business as an importer or exporter of a covered coral reef species that knowingly violates subsection (b) shall be fined in accordance with title 18, United States Code, imprisoned for not more than 2 years, or both.
(C)

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

Rewards and incidental expenses
(A)

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 subsection (b)—
(i)
a reward to any person that furnishes information which leads to an arrest, criminal conviction, civil penalty assessment, or forfeiture of property for any violation of subsection (b); and
(ii)
the reasonable and necessary costs incurred by any person in providing temporary care for any individual of a covered coral reef species pending the disposition of any civil or criminal proceeding alleging a violation of subsection (b).
(B)

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 their official duties is ineligible to receive a reward under this paragraph.
(5)

Executive branch enforcement
(A)

Searches and seizures
(i)

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 for and seize any individual of a covered coral reef species taken, imported, exported, possessed, sold, purchased, delivered, carried, transported, or received in violation of subsection (b), as authorized by law.
(ii)

Seized covered coral reef species
Each individual of a covered coral reef species seized under clause (i) 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 each such individual pursuant to subparagraph (C), except that the appropriate Secretary may, in lieu of holding each such individual, allow the owner or consignee to post a bond or other surety satisfactory to the appropriate 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 appropriate Secretary in such a manner, consistent with the purposes of this section, as the appropriate Secretary shall by regulation prescribe.
(B)

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

Forfeiture
(i)

Covered coral reef species
Any individual of a covered coral reef species taken, imported, exported, possessed, sold, delivered, carried, transported, or received in interstate or foreign commerce in violation of subsection (b) shall be subject to forfeiture to the United States.
(ii)

Equipment used in unlawful practices
All guns, traps, nets, and other equipment and vessels, vehicles, aircraft, and other means of transportation used to aid a violation of subsection (b), shall be subject to forfeiture to the United States upon the conviction of the person that owns such equipment or means of transportation of a criminal violation pursuant to subparagraph (A) or (B) of paragraph (3).
(D)

Other provisions of law
Any provision of law relating to the seizure, forfeiture, and condemnation of a vessel for violation of 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 section, insofar as such provision of law is applicable and not inconsistent with the provisions of this section, 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 section, be exercised or performed by the Secretary of Commerce or by such persons as the Secretary of Commerce may designate.
(6)

Citizen actions
(A)

In general
Except as provided in subparagraph (D), 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 allowed by the 11th Amendment to the Constitution), that is alleged to be in violation of subsection (b).
(B)

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 paragraph, without regard to the amount in controversy or the citizenship of the parties.
(C)

Intervention by Attorney General
In any action under this paragraph 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.
(D)

Exceptions
No action may be commenced under this paragraph for an alleged violation of subsection (b)—
(i)
before the date that is 60 days after the date on which written notice of such alleged violation is given to the Secretary of the Interior, the Secretary of Commerce, and any alleged violator of such subsection; or
(ii)
if the Secretary of the Interior, the Secretary of Commerce, or the Attorney General has initiated an enforcement action under this subsection with respect to such alleged violation.
(E)

Recovery of court costs
In any action brought pursuant to subparagraph (A), 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.
(F)

Relief under other laws
The injunctive relief provided by this paragraph 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.
(7)

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

Definitions
In this section:
(1)

Appropriate Secretary
The term appropriate Secretary means—
(A)
the Secretary of Commerce with respect to domestic matters;
(B)
the Secretary of Commerce and the Secretary of the Interior with respect to foreign matters; or
(C)
the Secretary with jurisdiction over the waters in which the matter is located with respect to matters located in waters within the exclusive economic zone.
(2)

Covered coral reef species
The term covered coral reef species means any marine reef species designated by the Secretary of the Interior under subsection (a).
(3)

Destructive collection practice
(A)

In general
The term destructive collection practice means any practice used to take an individual of a covered coral reef species that involves the use of any of the following:
(i)
Reef-dredging.
(ii)
Explosives.
(iii)
Poison.
(iv)
Any other destructive collection practice identified by the Secretary of Commerce by regulation, in consultation with the Secretary of the Interior.
(B)

Presence of poisons
For the purposes of this paragraph, the presence of any poison, or any metabolite associated with any such poison, in an individual of a covered coral reef species shall constitute evidence that poison was used in the take of such individual.
(4)

Exclusive economic zone
The term exclusive economic zone has the meaning given the term in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802).
(5)

Marine reef species
The term marine reef species—
(A)
means a marine species that—
(i)
as determined by the Secretary of the Interior, lives primarily within a coral reef, including species of coral; and
(ii)
is collected commercially for the aquarium and curio trade; and
(B)
does not include a marine species described in subparagraph (A) that is ordinarily taken for human consumption.
(6)

Qualified aquaculture or mariculture facility
The term qualified aquaculture or mariculture facility means an aquaculture or mariculture facility that, with respect to a covered coral reef species—
(A)
only sells individuals of the covered coral reef species that are produced by such facility;
(B)
operates in a manner that is not detrimental to the conservation of the covered coral reef species in the wild;
(C)
operates in a manner that does not harm the coral reef ecosystem of the covered coral reef species, including by introducing non-indigenous species or pathogens; and
(D)
operates with safeguards sufficient to prevent the escape of—
(i)
captive individuals of the covered coral reef species; and
(ii)
eggs, larvae, young, fragments, and other organs of propagation of such covered coral reef species.
(7)

Qualified cooperative breeding program
The term qualified cooperative breeding program means a cooperative breeding program that—
(A)
is designed to promote the conservation of a covered coral reef species and maintain such covered coral reef species in the wild by enhancing the propagation and survival of such covered coral reef species; and
(B)
is developed and administered by, or in conjunction with, an aquarium, conservation, or zoological organization that meets standards established by the appropriate Secretary.
(8)

Qualified scientifically-based management plan
The term qualified scientifically-based management plan means a scientifically-based management plan that—
(A)
provides for the conservation of a covered coral reef species and the habitat of such covered coral reef species;
(B)
provides that individuals of a covered coral reef species are taken in a manner and in quantities that—
(i)
do not threaten the biological sustainability of such covered coral reef species or the role of such covered coral reef species in the coral reef ecosystem of such covered coral reef species; and
(ii)
minimize the adverse impact of the take of such covered coral reef species on the coral reef ecosystem of such covered coral reef species;
(C)
addresses factors relevant to the conservation of the covered coral reef species, including—
(i)
illegal trade;
(ii)
domestic trade;
(iii)
subsistence use;
(iv)
disease;
(v)
habitat loss; and
(vi)
cumulative effects of the take of the covered coral reef species; and
(D)
prohibits the use of destructive collection practices.
(f)

Effective date
This section shall take effect on the date that is 1 year after the date of the enactment of this section.