Statute in Full:
United States-Russia Polar Bear Conservation and Management Act of 2005 (Reported in Senate)
S 2013 RS
Calendar No. 365 109th CONGRESS 2d Session S. 2013
[Report No. 109-217]
To amend the Marine Mammal Protection Act of 1972 to implement the Agreement on the Conservation and Management of the Alaska-Chukotka Polar Bear Population.
IN THE SENATE OF THE UNITED STATES
November 15, 2005
Mr. STEVENS (for himself, Mr. INOUYE, and Ms. MURKOWSKI) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation
February 27, 2006
Reported by Mr. STEVENS, without amendment
To amend the Marine Mammal Protection Act of 1972 to implement the Agreement on the Conservation and Management of the Alaska-Chukotka Polar Bear Population.
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 `United States-Russia Polar Bear Conservation and Management Act of 2005'.
SEC. 2. AMENDMENT OF MARINE MAMMAL PROTECTION ACT OF 1972.
(a) IN GENERAL- The Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.) is amended by adding at the end thereof the following:
`TITLE V--ALASKA-CHUKOTKA POLAR BEARS
`SEC. 501. DEFINITIONS.
`In this title:
`(1) AGREEMENT- The term `Agreement' means the Agreement Between the Government of the United States of America and the Government of the Russian Federation on the Conservation and Management of the Alaska-Chukotka Polar Bear Population, signed at Washington, D.C., on October 16, 2000.
`(2) ALASKA NANUUQ COMMISSION- The term `Alaska Nanuuq Commission' means the Alaska Native entity, in existence on the date of enactment of this Act, that represents all villages in the State of Alaska that engage in the annual subsistence taking of polar bears from the Alaska-Chukotka population and any successor entity.
`(3) IMPORT- The term `import' means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, without regard to whether the landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States.
`(4) NATIVE PEOPLE- The term `Native people' has the meaning given the term in the Agreement.
`(5) POLAR BEAR PART OR PRODUCT- The term `part or product of a polar bear' means any polar bear part or product, including the gall bile and gall bladder.
`(6) SECRETARY- The term `Secretary' means the Secretary of the Interior.
`(7) TAKING- The term `taking' means hunting, capturing, or killing a polar bear .
`(8) UNITED STATES-RUSSIA POLAR BEAR COMMISSION- The term `United States-Russia Polar Bear Commission' means the binational commission established under article 8 of the Agreement.
`(9) UNITED STATES SECTION- The term `United States Section' means the commissioners appointed by the President under section 505 of this title.
`SEC. 502. PROHIBITIONS.
`(a) IN GENERAL- It is unlawful for any person--
`(1) to take any polar bear in violation of the Agreement;
`(2) to take any polar bear in violation of any annual taking limit or other restriction on the taking of polar bears that is adopted by the United States-Russia Polar Bear Commission pursuant to the Agreement;
`(3) to import, export, possess, transport, sell, receive, acquire, purchase, exchange, barter, or offer to sell, exchange, or barter any polar bear , or any part or product of a polar bear , that is taken in violation of the Agreement or any limit or restriction on taking that is adopted by the United States-Russia Polar Bear Commission;
`(4) to import, export, possess, transport, sell, receive, acquire, purchase, exchange, or barter, offer to sell, exchange, or barter, polar bear gall bile or a polar bear gall bladder;
`(5) to attempt to commit, solicit another person to commit, or cause to be committed, any offense under this subsection; or
`(6) to violate any regulation promulgated by the Secretary to implement any of the prohibitions established in this subsection.
`(b) EXCEPTIONS- For the purpose of forensic testing or any other law enforcement purpose, a government official may import a polar bear or any part or product of a polar bear .
`SEC. 503. ADMINISTRATION AND ENFORCEMENT.
`(a) IN GENERAL- The Secretary, acting through the United States Fish and Wildlife Service, shall do all things necessary and appropriate, including the promulgation of regulations, to implement, enforce, and administer the provisions of the Agreement on behalf of the United States. The Secretary shall consult with the Secretary of State, the Marine Mammal Commission, and the Alaska Nanuuq Commission on matters involving the implementation of the Agreement. The Secretary may utilize by agreement, with or without reimbursement, the personnel, services, and facilities of any other Federal agency, any State agency, or the Alaska Nanuuq Commission for purposes of carrying out this title or the Agreement. Any person authorized by the Secretary under this subsection to enforce this title or the Agreement shall have the powers and authorities that are enumerated in section 6(b) of the Lacey Act Amendments of 1981 (16 U.S.C. 3375(b)).
`(A) IN GENERAL- A polar bear , or any part or product of a polar bear , that is (or attempted to be) imported, exported, taken, possessed, transported, sold, received, acquired, purchased, exchanged, or bartered or offered for sale, exchange, or barter, or purchase, in violation of this title, shall be subject to seizure and forfeiture to the United States without any showing that may be required for assessment of a civil penalty or for criminal prosecution.
`(B) EQUIPMENT- Each gun, trap, net, or other equipment used, and any vessel, vehicle, aircraft, or other means of transportation used, to aid in the violation or attempted violation of this title shall be subject to forfeiture to the United States upon conviction of a criminal violation in accordance with subsection (e).
`(A) IN GENERAL- Any person authorized by the Secretary, the Secretary of the Treasury, the Secretary of Homeland Security, or the Secretary of Commerce to enforce this title may--
`(i) detain and inspect any container, including the contents of the container, and all accompanying documents, upon importation or exportation of the container;
`(ii) search and, if the container is found to contain a polar bear or part or product of a polar bear , seize the package, crate, or container, and any documentation associated with it, with or without a warrant.
`(B) TREATMENT OF SEIZED MATERIALS-
`(i) IN GENERAL- Except as provided in clause (ii), any polar bear , or any part or product of a polar bear , seized under this section shall be held by any person authorized by the Secretary, the Secretary of the Treasury, the Secretary of Homeland Security, or the Secretary of Commerce pending disposition of civil or criminal proceedings, or the institution of an action in rem for forfeiture of the polar bear , part, or product, in accordance with this subsection.
`(ii) BOND- Subject to clause (iii), in lieu of holding a polar bear or any part or product of a polar bear described in clause (i), the Secretary may permit the owner to post a bond or other surety satisfactory to the Secretary.
`(iii) DISPOSAL- Upon forfeiture of any property to the United States under this subsection, or the abandonment or waiver of any claim to any such property, the property shall be disposed of by the Secretary in such a manner, consistent with the purposes of this title, as the Secretary shall by regulation prescribe.
`(3) APPLICABLE LAW-
`(A) IN GENERAL- Subject to subparagraph (B), the following provisions of law described in subparagraph (B) shall apply to all seizures and forfeitures carried out under this title:
`(i) All provisions of law relating to the seizure, forfeiture, and condemnation of property for violation of the customs laws.
`(ii) All provisions of law relating to the disposition of seized or forfeited property or the proceeds from the sale of that property.
`(iii) All provisions of law relating to the remission or mitigation of that forfeiture.
`(iv) Section 981 of title 18, United States Code.
`(B) EXCEPTION- All powers, rights, and duties conferred or imposed by the customs laws upon any officer or employee of the Department of Treasury shall, for the purpose of this title, be exercised or performed by--
`(i) the Secretary or the Secretary's designee; or
`(ii) such persons as the Secretary may designate.
`(c) CIVIL PENALTIES-
`(A) IN GENERAL- Any person who knowingly engages in conduct prohibited by section 502, or who in the exercise of due care should know that the person is engaging in conduct prohibited by section 502, may be assessed a civil penalty by the Secretary of not more than $50,000 for each violation.
`(B) NOTICE AND OPPORTUNITY FOR HEARING- No penalty may be assessed against a person under this paragraph unless the person is given notice and opportunity for a hearing with respect to the violation for which the penalty is assessed.
`(C) SEPARATE OFFENSES- Each violation shall be a separate offense.
`(D) REMISSION AND MITIGATION- A civil penalty assessed under this paragraph may be remitted or mitigated by the Secretary.
`(E) CIVIL ACTION- Upon any failure by a person to pay a civil penalty assessed under this paragraph--
`(i) the Secretary may request the Attorney General to bring a civil action in the United States district court for any district in which the person is found, resides, or transacts business to collect the penalty; and
`(ii) the court shall have jurisdiction to hear and decide any such action.
`(F) STANDARD- A court shall hear and sustain a civil action by the Secretary under subparagraph (E) if the civil action is supported by substantial evidence on the record considered as a whole.
`(A) IN GENERAL- A hearing held during proceedings for the assessment of a civil penalty under paragraph (1) shall be conducted in accordance with section 554 of title 5, United States Code.
`(B) SUBPOENAS- The Secretary may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and administer oaths.
`(C) REIMBURSEMENT OF WITNESSES- A witness summoned to appear in a proceeding under this paragraph shall be paid the same fees and mileage that are paid to witnesses in the courts of the United States.
`(D) CONTUMACY- In case of contumacy or refusal to obey a subpoena served upon any person under this paragraph--
`(i) the United States district court for any district in which the person is found, resides, or transacts business, upon application by the United States and after notice to the person, shall have jurisdiction to issue an order requiring the person to appear and give testimony before the Secretary, to appear and produce documents before the Secretary, or both; and
`(ii) any failure to obey such an order of the court may be punished by the court as a contempt of the court.
`(d) CRIMINAL PENALTIES- A person who knowingly violates section 502 shall be fined not more than $100,000 for each such violation, imprisoned not more than 1 year, or both.
`(e) DISTRICT COURT JURISDICTION-
`(1) IN GENERAL- The United States district courts, including the courts specified in section 460 of title 28, United States Code, shall have jurisdiction over any action arising under this title.
`(2) ALASKAN CASES- Notwithstanding paragraph (1), the United States District Court for the district of Alaska shall have exclusive original jurisdiction of any action arising under this title for any violation committed, or alleged to have been committed, in Alaska.
`(f) OTHER ENFORCEMENT- The importation or exportation of a polar bear , or any part or product of a polar bear , that is taken, possessed, transported, sold, received, acquired, purchased, exchanged, or bartered or offered for sale, exchange, or barter, or purchase, in violation of the Agreement or any limitation or restriction of the United States-Russia Polar Bear Commission shall be considered to be transportation of wildlife for the purpose of section 3(a) of the Lacey Act Amendments of 1981 (16 U.S.C. 3372(a)).
`(1) IN GENERAL- The Secretary shall promulgate such regulations as are necessary to carry out this title and the Agreement.
`(2) ORDINANCES AND REGULATIONS- If necessary to carry out this title and the Agreement, and to improve compliance with the annual taking limit or other restriction on taking adopted by the United States-Russia Polar Bear Commission and implemented by the Secretary in accordance with this title, the Secretary may promulgate regulations that adopt any ordinance or regulation that restricts the taking of polar bears for subsistence purposes if the ordinance or regulation has been promulgated by the Alaska Nanuuq Commission.
`(h) USE OF PENALTY AMOUNTS- Amounts received as penalties, fines, or forfeiture of property under this section shall be used in accordance with section 6(d) of the Lacey Act Amendments of 1981 (16 U.S.C. 3375(d)).
`(i) SEVERABILITY- If any provision of this title is, for any reason, found to be invalid by a court of competent jurisdiction, the judgment of the court--
`(1) shall not affect, impair, or invalidate the remaining provisions of this title; and
`(2) shall instead be confined in its operation to provision of the Act directly involved in the controversy in which the judgment is rendered.
`SEC. 504. DESIGNATION AND APPOINTMENT OF MEMBERS OF THE UNITED STATES SECTION OF THE COMMISSION; COMPENSATION, TRAVEL EXPENSES, AND CLAIMS.
`(a) DESIGNATION AND APPOINTMENT-
`(1) IN GENERAL- The United States shall be represented on the United States-Russia Polar Bear Commission by 2 United States commissioners.
`(2) APPOINTMENT- The United States commissioners shall be appointed by the President, after taking into consideration the recommendations of--
`(A) the Secretary;
`(B) the Secretary of State;
`(C) the Speaker of the House of Representatives and the President pro tempore of the Senate; and
`(D) the Alaska Nanuuq Commission.
`(3) QUALIFICATIONS- With respect to the United States commissioners appointed under this subsection, in accordance with paragraph 2 of article 8 of the Agreement--
`(A) 1 United States commissioner shall be an official of the Federal Government;
`(B) 1 United States commissioner shall be a representative of the Native people of Alaska, and, in particular, the Native people for whom polar bears are an integral part of their culture; and
`(C) both commissioners shall be knowledgeable of, or have expertise in, polar bears.
`(4) SERVICE AND TERM- Each United States commissioner shall serve--
`(A) at the pleasure of the President; and
`(B) for an initial 4-year term and such additional terms as the President shall determine.
`(A) IN GENERAL- Any individual appointed to fill a vacancy occurring before the expiration of any term of office of a United States commissioner shall be appointed for the remainder of that term.
`(B) MANNER- Any vacancy on the United States-Russia Polar Bear Commission shall be filled in the same manner as the original appointment.
`(b) ALTERNATE COMMISSIONERS-
`(1) IN GENERAL- The Secretary, in consultation with the Secretary of State, the Speaker of the House of Representatives, the President pro tempore of the Senate, and the Alaska Nanuuq Commission, shall designate an alternate commissioner for each member of the United States Section.
`(2) DUTIES- In the absence of a commissioner, an alternate commissioner may exercise all functions of the commissioner at any meetings of the United States-Russia Polar Bear Commission or of the United States Section.
`(3) REAPPOINTMENT- An alternate commissioner--
`(A) shall be eligible for reappointment by the President; and
`(B) may attend all meetings of the United States Section.
`(c) DUTIES- The members of the United States Section may carry out the functions and responsibilities described in article 8 of the Agreement in accordance with this title and the Agreement.
`(d) COMPENSATION AND EXPENSES-
`(1) COMPENSATION- A member of the United States Section shall serve without compensation.
`(2) TRAVEL EXPENSES- A member of the United States Section shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for an employee of an agency under subchapter I of chapter 57 of title 5, United States Code, while away from the home or regular place of business of the member in the performance of the duties of the United States-Russia Polar Bear Commission.
`(e) AGENCY DESIGNATION- The United States Section shall, for the purpose of title 28, United States Code, relating to claims against the United States and tort claims procedure, be considered to be a Federal agency.
`SEC. 505. VOTES TAKEN BY THE UNITED STATES SECTION ON MATTERS BEFORE THE COMMISSION.
In accordance with paragraph 3 of article 8 of the Agreement, the United States Section shall vote on any issue before the United States-Russia Polar Bear Commission only if there is no disagreement between the 2 United States commissioners regarding the vote.