S.Amdt. 5576

SA 5576. Mr. LAUTENBERG (for himself, Mr. Inouye, Mr. Stevens, Mr. Smith, Ms. Snowe, Mr. Graham, Mr. Grassley, Mr. Nelson of Florida, and Mr. Biden) submitted an amendment intended to be proposed by him to the bill S. 3001, to authorize appropriations for fiscal year 2009 for military activities of the Department of Defense, for military construction, adn for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes; which was ordered to lie on the table; as follows:

DIVISION --SUBMERSIBLE AND SEMI-SUBMERSIBLE VESSELS

SEC. 1. SHORT TITLE.

This division may be cited as the “Maritime Drug Law Enforcement Act of 2008”.

SEC. 2. OPERATION OF SUBMERSIBLE OR SEMI-SUBMERSIBLE VESSEL WITHOUT NATIONALITY.

(a) Finding and declaration.--Section 70501 of title 46, United States Code, is amended--

(1) by inserting “(1)” after “that”; and

(2) by striking “States.” and inserting “States and (2) 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.”.

(b) Submersible or Semi-submersible Vessel Defined.--Section 70502 of title 46, United States Code. is amended by adding at the end thereof the following:

“(f) Semi-submersible Vessel; Submersible Vessel.--

“(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 vessel that is capable of operating completely below the surface of the water, including both manned and unmanned watercraft.”.

(c) Operation Prohibited.--

(1) In general.--Section 70503(a) of title 46, United States Code, is amended to read as follows:

“(a) In General.--An individual may not knowingly or intentionally--

“(1) manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance on board--

“(A) a vessel of the United States or a vessel subject to the jurisdiction of the United States; or

“(B) any vessel if the individual is a citizen of the United States or a resident alien of the United States; or

“(2) operate by any means or embark 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.”.

(2) Conforming amendment.--Section 70503(c) is amended by striking “subsection (a)” and inserting “subsection (a)(1)”.

(3) Prima facie evidence of submersibles violation.--Section 70503 of title 46, United States Code, is amended by adding at the end the following:

“(e) Evidence of Intent to Evade Detection.--In any enforcement proceeding for a violation of subsection (a)(2), the presence of any of the indicia described in paragraphs (1) (other than subparagraphs (B), (C), and (D)), (4), (5), or (6) of section 70507(b) may be considered, in the totality of the circumstances, to be prima facie evidence of intent to evade detection.”.

(4) Clerical Amendments.--

(A) The heading for section 70503 of title 46, United States Code, is amended to read as follows:

“ 70503. Offenses ”.

(B) The chapter analysis for chapter 705 of title 46, United States Code, is amended by striking the item relating to section 70503 and inserting the following:

“70503. Offenses”.

(d) Affirmative Defenses.--

(1) In general.--Section 70505 of title 46, United States Code, is amended to read as follows:

“ 70505. Defenses

“(a) Failure To Comply with International Law as a Defense.--A person charged with violating section 70503 of this title does not have standing to raise a claim of failure to comply with international law as a basis for a defense. A claim of failure to comply with international law in the enforcement of this chapter may be made only by a foreign nation. A failure to comply with international law does not divest a court of jurisdiction and is not a defense to a proceeding under this chapter.

“(b) Affirmative Defenses.--

“(1) In general.--It is an affirmative defense to a prosecution for a violation of section 70503(a)(2), 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 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 a 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.”.

(2) Clerical amendment.--The chapter analysis for chapter 705 of title 46, United States Code, is amended by striking the item relating to section 70505 and inserting the following:

“70505. Defenses”.

(e) Penalty.--Section 70506 of title 46, United States Code, is amended--

(1) by striking “70503” and inserting “70503(a)(1)”; and

(2) by adding at the end thereof “A person violating section 70503(a)(2) shall be fined under title 18 and imprisoned for not more than 15 years, or both.”.

SEC. 3. SENTENCING GUIDELINES.

(a) In General.--Pursuant it its authority under section 994(p) of title 28, United States Code, 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 violating section 70503(a)(2) of title 46, United States Code.

(b) Requirements.--In carrying out this section, the Commission shall--

(1) ensure that the sentencing guidelines and policy statements reflect the serious nature of the offense 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 vessel (as defined in section 70502(f) of title 46, United States Code) to facilitate other felonies;

(B) the repeated use of such a vessel 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 violation of section 70503(a)(2) of title 46, United States Code;

(D) whether the persons operating or embarking in such a vessel willfully caused, attempted to cause, or permitted the destruction or injury of the 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.