More MAC
- Thread starter MaryHM
- Start date
Is there anyone with the authority to shut MAC down if they do not change their ways? If they feel no pressure or face no reprimand, then all the letters and effort in the world will not change what's going on. They get lots of money, and now they are establishing a program to cover up any wrongdoing on their part. It will not end unless someone throws the hammer down...
Peace,
Chip
Peace,
Chip
JT,
Mr. Josef Steiger's letter appeared very sincere. MAC is obviously certifiying know cyanide dealers. We have the right to demand that MAC produce a clean fish supply and not a "Greenwash". IMO if people accept MAC in its current flawed form it will be nearly impossible to get the cheats out of the system. It is usually much easier to do things right from the start than to go back and fix problems once people have gotten used living with them. MAC can do a lot better job than they have to date, and there is no reason to hold them to such a low standard.
Mitch Gibbs
Mr. Josef Steiger's letter appeared very sincere. MAC is obviously certifiying know cyanide dealers. We have the right to demand that MAC produce a clean fish supply and not a "Greenwash". IMO if people accept MAC in its current flawed form it will be nearly impossible to get the cheats out of the system. It is usually much easier to do things right from the start than to go back and fix problems once people have gotten used living with them. MAC can do a lot better job than they have to date, and there is no reason to hold them to such a low standard.
Mitch Gibbs
I agree. Mr. Steiger is a great guy, spent some time with him during my last visit to PI with Ferdinand.dizzy":kvgok7uj said:
I agree, but I don't think shutting down MAC and starting over with something new is the answer. There is an awful lot of bad mouthing of MAC going around but very little assistance being offered to help fix things. I think MAC can be set on the right path. I just don't know how.dizzy":kvgok7uj said:
- JT
Hi all,
I do believe that MAC is the last chance stakeholders of the marine aquarium industry in the Philippines and Indonesia have. I also believe MAC is the only organization with the credibility to "force" exporters, middlemen/women and collectors in PI and IN to
comply with the certification initiative. It has been demonstrated that MAC's program has some weakness which can be corrected. This, with our participation by means of constructive criticism.
Bad mouthing of MAC is not going to help, to the contrary, it will provide radical groups with ammunition to close down the trade in those countries.
No other organization or group will have the economic support and the willingness of various stakeholders to tackle the problems the trade has in the Ph. and In.
Please do remember that working in the Philippines is very complex. Forget quick fix and short answers. Is going to take time.
What MAC needs is support.
Jaime
I do believe that MAC is the last chance stakeholders of the marine aquarium industry in the Philippines and Indonesia have. I also believe MAC is the only organization with the credibility to "force" exporters, middlemen/women and collectors in PI and IN to
comply with the certification initiative. It has been demonstrated that MAC's program has some weakness which can be corrected. This, with our participation by means of constructive criticism.
Bad mouthing of MAC is not going to help, to the contrary, it will provide radical groups with ammunition to close down the trade in those countries.
No other organization or group will have the economic support and the willingness of various stakeholders to tackle the problems the trade has in the Ph. and In.
Please do remember that working in the Philippines is very complex. Forget quick fix and short answers. Is going to take time.
What MAC needs is support.
Jaime
Blind support for the sake of support is not going to do us, or MAC any good. MAC needs to show they are being effective, right now all I see is an organization that is over zealous and overly ambitious collecting and spending money and not doing much to further conservation.
Some individuals have expressed their concerns about MAC's modus operandi. No doubt that there are some issues that need to be addressed immediately by MAC. Constructive criticism will help to do that.
I am not suggesting blind support. I know, first hand what the problems are, also know how difficult is to work in developping countries specifically the Philippines and Indonesia.
The problems in the Philippines have been dragging for decades. Now, it is the first time that an organization (MAC) is getting all the stakeholders together working to find solutions to many of the problems they (stakeholders) have created to satisfy aquarium hobbyists overseas.
I think is necessary that importers in the US, Canada and elsewhere put pressure on Filipino exporters to comply with MAC initiatives and make sure that MAC is taking a stand to defend fish collectors.
Are importers and retailers interested in getting good quality net caught fish, protecting at the same time coral reefs?
Are importers and retailers willing to pay extra cents for good quality fish?
Are aquarium hobbyists willing to pay extra dollars for good quality net caught fish?
Do aquarium hobbyists care about economic/social situation of fisherfolks in developing countries collecting fish for their hobby?
If we do not support MAC, what do you think should be done?
jaime
I am not suggesting blind support. I know, first hand what the problems are, also know how difficult is to work in developping countries specifically the Philippines and Indonesia.
The problems in the Philippines have been dragging for decades. Now, it is the first time that an organization (MAC) is getting all the stakeholders together working to find solutions to many of the problems they (stakeholders) have created to satisfy aquarium hobbyists overseas.
I think is necessary that importers in the US, Canada and elsewhere put pressure on Filipino exporters to comply with MAC initiatives and make sure that MAC is taking a stand to defend fish collectors.
Are importers and retailers interested in getting good quality net caught fish, protecting at the same time coral reefs?
Are importers and retailers willing to pay extra cents for good quality fish?
Are aquarium hobbyists willing to pay extra dollars for good quality net caught fish?
Do aquarium hobbyists care about economic/social situation of fisherfolks in developing countries collecting fish for their hobby?
If we do not support MAC, what do you think should be done?
jaime
i, for one- think that every single board member of mac who was even partly responsible for the travesty that mac has been up till now, should be forcibly ejected from the organization, and be forced to pay back all of the grant moneys they have swindled from any public and private organizations since macs inception, from their own pocket.
after a new board is elected- a watchdog organization from the gov't should also be setup to ensure that the new mac is actually trying, at least, to truly create an ethical and sustainable collection industry of marine ornamentals, with a time limit of 5 yrs to comply, before cutting off, completely, all funding to mac, and closing the industry down.
a swift kick in the pants seems to be the only way things will get done, sometimes. :wink:
i am very curious to find out exactly where all of this money mac has obtained up 'till now has been going-to which organizations, individuals, and for which purposes.
after a new board is elected- a watchdog organization from the gov't should also be setup to ensure that the new mac is actually trying, at least, to truly create an ethical and sustainable collection industry of marine ornamentals, with a time limit of 5 yrs to comply, before cutting off, completely, all funding to mac, and closing the industry down.
a swift kick in the pants seems to be the only way things will get done, sometimes. :wink:
i am very curious to find out exactly where all of this money mac has obtained up 'till now has been going-to which organizations, individuals, and for which purposes.
JT":3urzn6uf said:I don't think shutting down MAC and starting over with something new is the answer. There is an awful lot of bad mouthing of MAC going around but very little assistance being offered to help fix things. I think MAC can be set on the right path. I just don't know how.
- JT
And so far from the posts above, no one seems to have any suggestions either. Kind of sad if you ask me.
I've made this suggestion before, but I'll spit it out again.
It seems that MAC is about more than simply cyanide use, (although I realize that it is one of the major problems), but it is also about sustainable collection, proper handling techniques from ocean to customer, and environmental protection as well. The major sticking point is the fact that they are certifying fish "cyanide free" without the presence of a cyanide test. Fine. Why not focus on the other areas in the meantime, until a valid, convenient, reliable test is developed. Stick your label on the corals and inverts, certify the collections locations, certify that the corals were collected from areas that aren't being overharvested, and that they were handled appropriately along the way. Use your dues money and grant money to speed the devlopement of the cyanide test. Once it's in place you'll have a lot of practice dealing with "the chain" and it will be a simple matter to include fish. The MAC name will already have been developed, and the organization will be a little more fleshed out by then. Most of the people who are really into corals are the ones who are looking for the "net caught" fish any way so it will be a natural progression.
My suggestion for how to keep MAC viable without certifying dirty fish.
It seems that MAC is about more than simply cyanide use, (although I realize that it is one of the major problems), but it is also about sustainable collection, proper handling techniques from ocean to customer, and environmental protection as well. The major sticking point is the fact that they are certifying fish "cyanide free" without the presence of a cyanide test. Fine. Why not focus on the other areas in the meantime, until a valid, convenient, reliable test is developed. Stick your label on the corals and inverts, certify the collections locations, certify that the corals were collected from areas that aren't being overharvested, and that they were handled appropriately along the way. Use your dues money and grant money to speed the devlopement of the cyanide test. Once it's in place you'll have a lot of practice dealing with "the chain" and it will be a simple matter to include fish. The MAC name will already have been developed, and the organization will be a little more fleshed out by then. Most of the people who are really into corals are the ones who are looking for the "net caught" fish any way so it will be a natural progression.
My suggestion for how to keep MAC viable without certifying dirty fish.
Chucker":12olor2d said:
Chucker,
Actually vitz did mention something about MAC restaffing. I also recall Steve Robinson suggesting this somewhere else. If a football coach or a CEO puts together a losing program they put them on the road. MAC has apparently squandered millions of dollars. If MAC would recruit a few pro-industry moderates it would help their cause. The problem is these NGO boards appoint their buddies and no one really has the authority to scrutinize them. If someone points out their faults they are accused of offering destructive criticism. There has been a lot of lying and deceiving, and a great deal of money has been spent trying to put a positive spin on something that had failed to yield positive results.
Perhaps a few fresh faces on the MAC board would allow the healing to begin. I would like to see Peter Rubec on the MAC board for one. I also think someone like Martin Moe Jr. would also be a good choice. I would like to see a few leaders who have integrity recruited to join the current bunch who appear to have vey little.
Mitch Gibbs
dizzy:
i, for one, am immediately going to start urging all of my customers/friends to boycott any store showing a mac sticker-until holthus, et al, are out of the picture entirely-
no money, no mac :wink:
no mac, mebbe someone else can step up to the challenge, and truly meet it :wink:
i, for one, am immediately going to start urging all of my customers/friends to boycott any store showing a mac sticker-until holthus, et al, are out of the picture entirely-
no money, no mac :wink:
no mac, mebbe someone else can step up to the challenge, and truly meet it :wink:
Reply to Dizzy and others comments.
There are indeed serious problems with the MAC which has compelled me to accuse them of Greenwashing. This is not as Dizzy has implied because the MAC board is dominated by NGOs. Much of what has happened is because of the influence of certain individuals associated with the trade. I hesitate to name them, because they are threatening to sue me for expressing my opinion.
Basically, the MAC has caved into Philippine exporters and some major US importers, who do not want to change the way they do business. They want MAC Certification without reforming the way they do business.
The MAC should have taken a firm stand and only certified exporters with 100% net-caught fish (not mixing the cyanide and net-caught fish in the same facilities). AT present there is only one Philippine exporter that has 100% net-caught fish. She is Marivi Laurel of Aquarium Habitat. Buy your fish from her.
Similarly, the MAC should have taken a firmer stand a year ago with the importers who forced him to back down on the 1% DOA. The MAC was wrong about the 1% being achievable, but came across as being weak instead of being decisive. More reliance on "reformists" in the trade is needed rather than trying to placate the bad guys. I believe that the MAC is running out of time to do the right things.
Peter Rubec
There are indeed serious problems with the MAC which has compelled me to accuse them of Greenwashing. This is not as Dizzy has implied because the MAC board is dominated by NGOs. Much of what has happened is because of the influence of certain individuals associated with the trade. I hesitate to name them, because they are threatening to sue me for expressing my opinion.
Basically, the MAC has caved into Philippine exporters and some major US importers, who do not want to change the way they do business. They want MAC Certification without reforming the way they do business.
The MAC should have taken a firm stand and only certified exporters with 100% net-caught fish (not mixing the cyanide and net-caught fish in the same facilities). AT present there is only one Philippine exporter that has 100% net-caught fish. She is Marivi Laurel of Aquarium Habitat. Buy your fish from her.
Similarly, the MAC should have taken a firmer stand a year ago with the importers who forced him to back down on the 1% DOA. The MAC was wrong about the 1% being achievable, but came across as being weak instead of being decisive. More reliance on "reformists" in the trade is needed rather than trying to placate the bad guys. I believe that the MAC is running out of time to do the right things.
Peter Rubec
All of this talk about how no one is giving MAC any suggestions or solutions is a bunch of BULLONEY. MAC has been given advice in the past and they continually choose to ignore it. By bringing all of the recent criticism to light, it's a way of making them finally start to listen. They don't like bad press. And again, for the record again, I don't think anyone is suggesting that we eliminate MAC. MAC can be used for industry reform, but not if it keeps heading down the greenwash path it's been on for the past several months.
PeterIMA":qcz7rkhb said:
Peter,
I just went back and read my post and I don't know what you think I was implying. MAC is a mystery to me. IMO they are mostly strangers who have excluded the industry rank file from the process. I do know that the 1% DOA/DAA caused a major stir in the AMDA ranks. I also believe Elwyn Segrest and Mary Middlebrook when they say they told MAC the 1% would not work back when MAC was apparently accepting industry input. Elywyn and Mary both say they gave this information to MAC in writting. Elwyn has also stated that the industry operators who suggested the 1% was feasible did not put it in writing. He further said that MAC rules would only allow suggestions that were in writting. I don't believe Elwyn is lying about this.
So Peter from where I sit it looks like we had a MAC board that did not listen to industry and try to make the right changes, when the standards were being written. By refusing to compromise in the early going MAC sort of painted themselves into a corner. All we were being told in the industry was you better accept MAC or the government will shut you down. I heard it from Randy G. and I heard it from Mike King.
All MAC had to do was show a willingness to compromise and they could of have had industry support. Instead they adopted a hard line, which eventually caused all the wholesalers to revolt against them.
If one thing changed the course of history it had to be the presidential election. If Gore had won things would have been so different. When those wacky voters in your state screwed the election the MAC attack was disarmed. For better or worse the threat of industry shutdown was removed and the big bluff was easy to call.
I don't know where we go now Peter, but MAC has got to be nicer cause they lost their big stick. I don't think they needed to cave like they did, but a little movement toward the center would have been nice. I hope they are reading this and I hope they become more transparent.
Mitch Gibbs
just some fyi from an anonymous source regarding the crtf
(deep throat lives! :wink: )
pay attention to sec.5c-and think of how it relates to mac's certification process :wink:
SECTION 1. SHORT TITLE
This Act may be cited as the Coral Reef Conservation and Protection Act of 2000.
SECTION 2. FINDINGS
The Congress finds the following:
(1) Coral reefs and coral reef ecosystems are the marine equivalent of tropical rain forests, containing some of the richest biological diversity, habitats, and systems on Earth and supporting thousands of fish, invertebrates, algae, plankton, sea grasses, and other species.
(2) Coral reefs and coral reef ecosystems have great commercial, recreational, cultural, and aesthetic value to human communities as shoreline protection, areas of natural beauty, and sources of food, jobs, and pharmaceuticals, and are the focus of a wide variety of activities, including education, research, recreation, tourism, and fishing.
(3) Studies indicate that coral reef ecosystems in the United States and around the world are being degraded and severely threatened by human activities including land-based pollution, overfishing, destructive fishing practices, coastal development, vessel groundings, and climate change.
(4) Executive Order 13089 created the United States Coral Reef Task Force, which is chaired by the Secretaries of the Interior and of Commerce, and required it to develop measures necessary to reduce and mitigate coral reef ecosystem degradation and to restore damaged coral reefs, assess the United States’ role in international trade and protection of coral reef species, and implement appropriate strategies and actions to promote conservation and sustainable use of coral reef resources.
(5) International trade in coral, other reef invertebrates, reef fish, live rock and coral gravel contributes to the decline and degradation of reefs, primarily through the use of destructive collection practices, overexploitation of resources, and loss of reef habitat.
(6) The United States is the largest importer of live coral, live rock and marine fish for the aquarium trade and of coral skeletons and precious corals for souvenirs and jewelry.
(7) Harvesting of live coral and wild live rock is of special concern because it removes essential components of reef habitat, increases erosion, and damages critical fisheries habitat.
(8) More than half of the fish imported into the United States for the marine aquarium market are estimated to be captured with the use of cyanide and other poisons that kill other coral reef species and the corals that form the reef framework. Such destructive fishing practices are becoming increasingly common in other countries to meet the growing worldwide demand for ornamental fish and live food fish.
(9) As many as one-third to one-half of the aquarium fishes imported from Southeast Asia die shortly after arrival in the United States, due to stresses associated with handling and transport, and to the use of cyanide during capture. Such high mortality leads to continued pressure for extraction from the wild to maintain public and private collections.
(10) The United States, as the world’s largest importer of coral reef species and products and as a party to the Convention on the International Trade in Endangered Species of Wild Fauna and Flora, should play a substantial role in conserving and restoring coral reef ecosystems, including assisting other countries in developing and implementing coral reef conservation programs, and ensuring that the market in the United States for coral reef species and products does not contribute to the detriment of the survival of the species in the wild or to the detriment of coral reef ecosystems.
(11) The United States should also exercise leadership in moving from a species-based sustainable management approach to an ecosystem-based approach, both nationally and internationally.
(12) This Act provides a series of nondiscriminatory measures that are necessary for the conservation of coral reef species, and furthers the obligations of the United States under the Convention.
SECTION 3. DEFINITIONS
In this Act –
(1) The term "Convention" means the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), as amended, signed in Washington on March 3, 1973, and the Appendices thereto.
(2) The term "coral" means any living or dead specimens, parts or derivatives, or any product containing specimens, parts or derivatives of any species of the phylum Cnidaria, including
(A) all species of black corals (Antipatharia), stony corals (Scleractinia), soft corals (Alcyonacea), horny corals (Gorgonacea), organ pipe corals (Stolonifera), and blue coral (Coenothecalia) of the class Anthozoa; and
(B) all species of the fire corals (Milleporina) and lace corals (Stylasterina) of the class Hydrozoa.
(3) The term "coral reef" means any reef, shoal, or other natural feature composed in part of the solid skeletal structures in which corals are major framework constituents.
(4) The term "coral reef ecosystem" means the interacting complex of species (including reef plants of the phyla Chlorophyta, Phaeophyta, and Rhodophyta) and nonliving variables associated with coral reefs and their habitats which function as an ecological unit in nature and which are mutually dependent on this function to survive.
(5) The term "coral reef species" means
(A) any species of plant or animal, including algae, seagrasses, invertebrates and vertebrates that live in, on, or near coral reefs and are directly dependent on the coral reef ecosystem for feeding, reproduction or growth, but does not include mammals, reptiles, or birds; and
(B) live rock.
(6) The term "foreign commerce" includes any transaction between persons within one foreign country, between persons in two or more foreign countries, between a person within the United States and a person in a foreign country, or between persons within the United States, where the coral reef species in question is moving in any country or countries outside the United States.
(7) 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, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the custom laws of the United States.
(8) The term "live rock" means any hard substrate that is attached to and supports any species identified in subparagraph (A) of the definition of "coral reef species."
(9) The term "person" means an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a State; or any other entity subject to the jurisdiction of the United States.
(10) The term "State" means a State, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory or possession of the United States.
(11) The term "take" means to capture, catch, collect or harvest coral reef species by any means.
(12) The term "United States" includes the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory or possession of the United States that contains coral within its jurisdiction.
(13) The term "waters under the jurisdiction of the United States" means the belt of seas extending to a distance of 200 nautical miles measured from the baseline from which the breadth of the territorial sea of the United States is measured, except where that distance is modified by maritime boundary agreements to which the United States is a party.
SECTION 4. PROHIBITED ACTS
(a) Generally Except as provided in section 5 of this Act, with respect to any coral reef species identified in subsection (b) of this Section, effective one year from the date of enactment of this Act, it shall be unlawful for any person to --
(1) take any such coral reef species within waters under the jurisdiction of the United States;
(2) import into or export from the United States any such coral reef species;
(3) possess, sell, purchase, deliver, carry, transport, or receive in interstate or foreign commerce any such coral reef species taken or imported in violation of subparagraphs (1) or (2); or
(4) attempt to commit any act described in subparagraphs (1) through (3).
(b) Species covered The coral reef species that are covered by this Section are –
(1) any coral reef species listed in Appendix II of the Convention as of the effective date of this Act;
(2) any coral reef species added to Appendix II of the Convention after the effective date of this Act, unless the Secretary of the Interior, in consultation with the Secretary of Commerce, finds within 90 days from the effective date of the inclusion of such species in Appendix II of the Convention that the take, import, and export of such species does not represent a substantial risk of harm to the sustainability of such species and its coral reef ecosystem; and
(3) any other coral reef species (excluding any finfish, mollusk, crustacean, or other animal or plant species taken for human consumption) as periodically determined by the Secretary of the Interior and the Secretary of Commerce, after notice and opportunity for public comment, the take, interstate commerce, import or export, of which (i) presents a substantial risk of harm to the sustainability of such species or of its coral reef ecosystem; or (ii) results in high mortality rates for individuals of that species due to poor survivorship in transport or captivity.
(c) Removal of species from coverage. (1) The Secretary of the Interior, in consultation with the Secretary of Commerce, shall have the authority to remove a species from coverage under subparagraphs (b)(1) and (b)(2) of this section, after opportunity for notice and comment, upon a finding that the take, interstate commerce, import and export of such species does not represent a substantial risk of harm to the sustainability of that species and of its coral reef ecosystem.
(2) The Secretary of the Interior and the Secretary of Commerce shall have the authority to remove a species from coverage under subparagraph (b)(3) of this section, after opportunity for notice and comment, upon a finding that the take, interstate commerce, import and export of such species does not represent a substantial risk of harm to the sustainability of that species and of its coral reef ecosystem.
SECTION 5. EXCEPTIONS
(a) General exceptions. The prohibitions in section 4(a) shall not apply if the coral reef species was:
(1) taken in waters under the jurisdiction of the United States or in waters under the jurisdiction of a foreign country in accordance with a qualified management plan meeting the requirements in subparagraph (c);
(2) a product of a qualified cooperative breeding program or aquaculture or mariculture facility meeting the requirements in subparagraph (d); or
(3) 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, zoological breeding or display.
(b) Subsistence. The prohibition in section 4(a)(1) shall not apply if the coral reef species was taken for personal consumption by a person, if such taking is customary, traditional or necessary for the sustenance of such person or that person’s family members. The coral reef species so taken cannot be sold.
(c) Qualified Management Plans. The Secretary shall determine that a scientifically based management plan is qualified for purposes of subparagraph (a)(1) of this section provided that the plan:
(1) provides for the conservation of the coral reef species and its habitat;
(2) provides that the coral reef species is taken in such a manner and in such quantities so as to not threaten the biological sustainability of that species and to minimize the adverse impact of such take on the coral reef;
(3) addresses factors relevant to the conservation of the coral reef species, which may include illegal trade, domestic trade, subsistence use, disease, habitat loss, and cumulative impacts of take on the coral reef species; and
(4) prohibits use of the destructive collection practices of reef-dredging, explosives, poisons, or other destructive practices identified pursuant to section 6(b) of this Act.
In the case of waters within the Exclusive Economic Zone as defined under 16 U.S.C. § 1802, a fishery management plan developed and approved pursuant to the Magnuson-Stevens Act, and which the Secretary of Commerce has determined satisfies subparagraphs (1) through (4), above may constitute a qualified management plan for purposes of subparagraph (a)(1) of this section. In the case of waters under the jurisdiction of the Secretary of the Interior, the Secretary of Interior shall determine whether a plan satisfies subparagraphs (1) through (4) above. In the case of waters within the jurisdiction of a State, a fishery management plan that is developed by a State and determined by the Secretary of Commerce, following the fishery management plan review procedures of the Magnuson-Stevens Act, to provide a level of protection for coral reef species comparable to that provided by a fishery management plan governing the Exclusive Economic Zone adjacent to that State, and which the Secretary of Commerce has determined satisfies subparagraphs (1) through (4) above, may constitute a qualified management plan for purposes of subparagraph (a)(1) of this section.
Unless otherwise stated, for purposes of this subsection, "Secretary" shall mean the Secretary of Commerce with regard to domestic management plans, and shall mean the Secretary of the Interior and the Secretary of Commerce with regard to foreign management plans.
(d) Qualified Cooperative Breeding Programs, Aquaculture or Mariculture Facilities.
(1) The Secretary shall determine that a cooperative breeding program qualifies for purposes of subparagraph (a)(2) of this section provided that it is
(A) designed to promote the conservation of the coral reef species and maintain the species in the wild by enhancing the propagation and survival of the species, and
(B) developed and administered by, or in conjunction with, an aquarium, conservation, or zoological organization that meets standards developed by the Secretary.
(2) The Secretary shall determine that an aquaculture or mariculture facility qualifies for purposes of subparagraph (a)(2) of this section provided that it
(A) demonstrates the capability of producing sufficient captive coral reef species in the numbers to be traded from that facility;
(B) operates in a manner that is not detrimental to the conservation of the species in the wild; and
(C) operates in a manner that does not harm the existing ecosystem, such as by the introduction of non-indigenous species.
For purposes of this subsection, "Secretary" shall mean the Secretary of Commerce with regard to domestic cooperative breeding programs, aquaculture or mariculture facilities, and shall mean the Secretary of the Interior and the Secretary of Commerce with regard to foreign cooperative breeding programs, aquaculture or mariculture facilities.
(e) Implementation. Within one year from the date of enactment of this Act, the Secretary of the Interior and the Secretary of Commerce shall promulgate such regulations as they deem necessary and appropriate to carry out the purposes of this section. The Secretary of the Interior and the Secretary of Commerce shall also have the authority to exempt by regulation the incidental take of coral reef species from the prohibitions in section 4(a) of this Act. During the period of time, if any, between the effective date of the prohibitions in section 4(a) of this Act and the effective date of the regulations provided for in this subparagraph, persons claiming the benefit of an exception under subparagraph (a) of this section shall certify that, to the best of their knowledge or belief, the coral reef species were not taken in a manner contrary to section 5(c)(2) or are products of programs or facilities meeting the criteria set out in sections 5(d)(1)(A), 5(d)(1)(B), 5(d)(2)(A), 5(d)(2)(B), and 5(d)(2)(C).
(f) Burden of Proof for Exceptions. Any person claiming the benefit of any exception under this Act shall have the burden of proving that the exception is applicable or has been granted, and was valid and in force at the time of the alleged violation.
SECTION 6. DESTRUCTIVE COLLECTION PRACTICES
(a) Prohibited collection practices. Notwithstanding sections 4 and 5, one year after enactment of this Act, it shall be unlawful for any person to:
(1) take any coral reef species in waters under the jurisdiction of the United States using the destructive collection practices of reef-dredging, explosives, poisons, or other destructive practices identified pursuant to subparagraph (b) of this section; or
(2) import or export any coral reef species without a certification by the importer or exporter that the coral reef species to be imported or exported was not taken through the use of the destructive collection practices of reef-dredging, explosives, poisons, or other destructive practices identified pursuant to subparagraph (b) of this section.
(b) Other destructive collection practices. The Secretary of Commerce, after notice and comment, and in consultation with the Secretary of the Interior and the advisory committee described in section 7(b), is authorized to identify and prohibit pursuant to regulation the use of other collection practices that are destructive to coral reefs.
SECTION 7. CONSULTATION REGARDING PROTECTION OF CORAL REEF SPECIES.
The Secretary of State, in consultation with the Administrator of the United States Agency for International Development, Secretary of the Interior and the Secretary of Commerce, upon enactment of this Act, may initiate consultations with foreign governments which are engaged in, or which have persons or companies engaged in, commercial operations which take coral reef species, with the purpose of such consultations being:
(a) to encourage protection of coral reef species through building consensus on standards for, and implementation of, sustainable management plans; and
(b) to take steps to eliminate of the use of destructive collection practices identified in section 6 of this Act or in regulations promulgated pursuant thereto.
SECTION 8. COORDINATION REGARDING CONSERVATION OF CORAL REEF ECOSYSTEMS.
(a) Generally. In carrying out this Act, the Secretary of the Interior and the Secretary of Commerce shall coordinate with members of the Coral Reef Task Force and affected stakeholders for the conservation and sustainable management of coral reef ecosystems.
(b) Advisory group. The Secretary of the Interior and the Secretary of Commerce shall convene an advisory group consisting of individuals representing public and private organizations affected by this Act. The advisory group will include persons involved in the conservation of coral reef ecosystems, the harvest and trade of coral reef species, and the operation of cooperative breeding programs, and aquaculture and mariculture facilities for the propagation of coral reef species, including other Federal agencies, States and territories represented on the Task Force. The Secretary of the Interior and the Secretary of Commerce, in consultation with the advisory group, shall develop:
(1) criteria and indicators for the conservation and sustainable management of coral reef ecosystems within one year of enactment of this Act;
(2) a coordinated national strategy for conservation and sustainable management of coral reef species and ecosystems upon completion of the criteria and indicators described in subparagraph (b)(1); and
(3) guidelines for transportation and handling of coral reef species that would improve survival in commerce within one year of enactment of this Act.
(c) International cooperation. The Department of State and the United States Agency for International Development, in coordination with other appropriate agencies, may utilize their authorities in furtherance of the purposes of this Act to encourage policies and implement programs for the conservation and sustainable management of coral reef ecosystems in other parts of the world, such as through multilateral negotiations, participation in various international fora, bilateral assistance, and capacity building.
SECTION 9. ENFORCEMENT
(a) Administrative penalties. (1) Any person who violates any provision of sections 4(a) or 6 of this Act, or of regulations issued under authority thereof, may be assessed a civil penalty by the Secretary of the Interior or the Secretary of Commerce of not more than $25,000 for each violation. Each violation and each day of continuing violation shall be a separate offense. No penalty may be assessed under this subsection unless such person is given notice and opportunity for a hearing with respect to such violation. In determining the amount of such penalty, the Secretary shall take into account the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offenses, and such other matters as justice may require. In assessing such penalty the Secretary may also consider any information provided by the violator relating to the ability of the violator to pay, provided that the information is served on the Secretary at least 30 days prior to an administrative hearing. Any person against whom a civil penalty is assessed may obtain review thereof in in the United States district court for the appropriate district by filing a complaint against the Secretary in such court within 30 days form the date of such order. The Secretary shall promptly file in such court a certified copy of the record upon which such violation was found or such penalty imposed, as provided in section 2112 of title 28, united States Code. The findings and order of the Secretary shall be set aside by such court if they are not found to be supported by substantial evidence, as provided in section 607(2) of title 5, United States Code. If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order, or after the appropriate court has entered final judgment in favor of the Secretary, the Secretary shall refer the matter to the Attorney General of the United States, who shall recover the amount assessed in any appropriate district court of the United States. In such action, the validity and appropriateness of the final order imposing the civil penalty shall not be subject to review.
(2) Hearings held during proceedings for the assessment of civil penalties authorized by paragraph (1) of this subsection shall be conducted in accordance with section 554 of Title 5. The Secretary of the Interior or the Secretary of Commerce may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and administer oaths. Witnesses summoned shall be paid the same fees and mileage that are paid to witnesses in the courts of the United States. In case of contumacy or refusal to obey a subpoena served upon any person pursuant to this paragraph, the district court of the United States for any district in which such person is found or resides or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the Secretary of the Interior or the Secretary of Commerce or to appear and produce documents before the Secretary, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof.
(b) Civil actions. The Attorney General is authorized to commence a civil action in a district court of the United States for appropriate relief, including a permanent or temporary injunction and civil penalties of not more than $25,000 for each violation, for any violation of sections 4(a) or 6 of this Act or regulations issued under authority thereof.
(c) Criminal offenses. (1) Any person who knowingly violates and any person engaged in business as an importer or exporter of coral reef species who violates sections 4 or 6 of this Act, or any regulations issued under authority thereof, shall be fined under title 18, United States Code, or imprisoned for not more than 2 years, or both.
(2) Any person who violates any provision of this Act, or any regulations issued under authority thereof shall be fined under Title 18, imprisoned not more than 6 months, or both.
(3) Any person who knowingly makes, cause to be made, or submits, any false material statement or representation in any certification required by this Act which is intended to be used for the import, export, transport, sale, purchase, receipt or purchase of any coral reef species in interstate or foreign commerce shall upon conviction, be punished by a fine under Title 18, United States Code, or imprisonment of not more than two years or both. If the false material statement or representation is made in a certification required by section 6 of this Act, the person may also be punished by prohibiting the person from the import or export of any coral reef species. The United States shall not be liable for the payments of any compensation, reimbursement, or damages in connection with such prohibition.
(d) District court jurisdiction. The several district courts of the United States, including the courts enumerated in section 460 of Title 28, shall have jurisdiction over any actions arising under this Act . The venue provisions of Title 18 and Title 28 shall apply to any actions arising under this chapter. For the purpose of this Act, American Samoa shall be included within the judicial district of the District Court of the United States for the District of Hawaii. The judges of the district courts of the United States and the United States magistrate judges may, within their respective jurisdictions, upon proper oath or affirmation showing probable cause, issue such warrants or other process as may be required for enforcement of this Act and any regulation issued thereunder.
(e) Rewards and incidental expenses. The Secretary of the Interior or the Secretary of Commerce may pay, from sums received as penalties, fines, or forfeitures of property for any violation of sections 4(a) or 6 of this Act or any regulation issued hereunder (1) a reward to any person who furnishes information which leads to an arrest, a criminal conviction, civil penalty assessment, or forfeiture of property for any violation of this Act or any regulation issued hereunder, and (2) the reasonable and necessary costs incurred by any person in providing temporary care for any coral reef species pending the disposition of any civil or criminal proceeding alleging a violation of this Act. The amount of the reward, if any, is to be designated by the Secretary of the Interior or the Secretary of Commerce. Any officer or employee of the United States or any State or local government who furnishes information or renders service in the performance of his official duties is ineligible for payment under this subsection.
(f) Enforcement. (1) The provisions of this Act and any regulations issued pursuant thereto shall be enforced by the Attorney General, Secretary of the Interior or the Secretary of Commerce, the Secretary of the Treasury, or the Secretary of the Department in which the Coast Guard is operating. Each such Secretary may utilize by agreement, with or without reimbursement, the personnel, services, and facilities of any other Federal agency or any State agency for purposes of enforcing this Act.
(2) Any person authorized by the Secretary of the Interior or the Secretary of Commerce, the Secretary of the Treasury, or the Secretary of the Department in which the Coast Guard is operating, to enforce this Act may detain for inspection and inspect any package, crate, or other container, including its contents, and all accompanying documents, upon importation or exportation. Such person may make arrests without a warrant for any violation of this Act if he has reasonable grounds to believe that the person to be arrested is committing the violation in his presence or view, and may execute and serve any arrest warrant, search warrant, or other warrant or civil or criminal process issued by any officer or court of competent jurisdiction for enforcement of this Act. Such person so authorized may search and seize, with or without a warrant, as authorized by law. Any coral reef species so seized shall be held by any person authorized by the Secretary of the Interior or the Secretary of Commerce, the Secretary of the Treasury, or the Secretary of the Department in which the Coast Guard is operating pending disposition of civil or criminal proceedings, or the institution of an action in rem for forfeiture of such coral reef species pursuant to paragraph (4) of this subsection; except that the Secretary may, in lieu of holding such species, permit the owner or consignee to post a bond or other surety satisfactory to the 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 Secretary in such a manner, consistent with the purposes of this Act, as the Secretary shall by regulation prescribe.
(3) If any officer authorized to enforce the provisions of this Act finds that a person has violated any provision of sections 4(a) or 6 of this Act, such officer may, in accordance with regulations issued by the Secretary of Commerce, Secretary of the Interior and the Secretary of the department in which the Coast Guard is operating, issue a citation to the violator in lieu of proceeding under subparagraph (2) of this subsection.
(4)(A) All coral reef species taken, imported, exported, possessed, sold, delivered, carried, transported, or received contrary to the provisions of sections 4(a) or 6 of this Act, or any regulation issued under authority thereof, shall be subject to forfeiture to the United States. For purposes of this subparagraph, the presence in coral reef species of cyanide or other poisons or their associated metabolites shall constitute evidence of using poison to take coral reef species.
(B) All guns, traps, nets, and other equipment, vessels, vehicles, aircraft, and other means of transportation used to aid the taking, importing, exporting, possessing, selling, purchasing, delivering, carrying, transporting, or receiving of any coral reef species in violation of sections 4(a) or 6 of this Act, or any regulation issued under authority thereof, shall be subject to forfeiture to the United States upon conviction of a criminal violation pursuant to subsections (b)(1) or (b)(2) of this section.
(5) All provisions of law relating to the seizure, forfeiture, and condemnation of a vessel for violation of the customs laws, the disposition of such vessel or the proceeds from the sale thereof, and the remission or mitigation of such forfeiture, shall apply to the seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this Act, insofar as such provisions of law are applicable and not inconsistent with the provisions of this Act; except that all powers, rights, and duties conferred or imposed by the customs laws upon any officer or employee of the Treasury Department shall, for the purposes of this Act, be exercised or performed by the Secretary or by such persons as he may designate.
(g) Citizen suits. (1) Except as provided in paragraph (2) of this subsection any person may commence a civil suit to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of sections 4(a) or 6 of this Act or regulations issued under the authority thereof. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce any such provision or regulation.
(2) No action may be commenced under this section --
(A) prior to sixty days after written notice of the violation has been given to the Secretary of the Interior and the Secretary of Commerce, and to any alleged violator of any such provision or regulation;
(B) if either the Secretary of the Interior or the Secretary of Commerce has commenced and is diligently prosecuting an action to impose a penalty pursuant to subsection (a) of this section; or
(C) if the United States has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State to redress a violation of any such provision or regulation.
(3) Any suit under this subsection may be brought in the judicial district in which the violation occurs. In any such suit under this subsection 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.
(4) The court, in issuing any final order in any suit brought pursuant to paragraph (1) of this subsection, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.
(5) The injunctive relief provided by this subsection 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.
(h) Regulations. The Secretary of the Interior, the Secretary of Commerce, the Secretary of the Treasury, and the Secretary of the Department in which the Coast Guard is operating, are authorized to promulgate such regulations as may be appropriate to enforce this Act, and charge reasonable fees for expenses connected with reviewing certificates authorized by this Act including processing applications and reasonable inspections, and with the transfer, board, handling, or storage of coral reef species and evidentiary items seized and forfeited under this Act. All such fees collected pursuant to this subsection shall be deposited in the Treasury to the credit of the appropriation which is current and chargeable for the cost of furnishing the services. Appropriated funds may be expended pending reimbursement from parties in interest.
SECTION 10. AUTHORIZATION OF APPROPRIATIONS
(1) There is authorized to be appropriated to the Secretary of the Interior $5,000,000 for each of fiscal years 2002, 2003, 2004, 2005, and 2006 to carry out the provisions of this Act.
(2) There is authorized to be appropriated to the Secretary of Commerce $1,750,000 for each of fiscal years 2002, 2003, 2004, 2005, and 2006 to carry out the provisions of this Act.
(3) There is authorized to be appropriated to the Secretary of State $200,000 for each of fiscal years 2002, 2003, 2004, 2005, and 2006 to carry out the provisions of this Act.
SECTION 11. RELATIONSHIP TO STATE LAWS
Nothing in this Act shall be construed or interpreted as preempting any State from imposing any more restrictive requirement regarding any coral reef species, provided that such requirement is consistent with the international obligations of the United States and any regulations promulgated by the Secretary of the Interior or the Secretary of Commerce to implement this Act.
SECTION 12. RELATIONSHIP TO FEDERAL FISHERY MANAGEMENT PLANS
Nothing in this Act shall be construed or interpreted as preempting any fishery management plan developed under the Magnuson-Stevens Act from containing management measures more restrictive than required by section 5 of this Act.
(deep throat lives! :wink: )
pay attention to sec.5c-and think of how it relates to mac's certification process :wink:
SECTION 1. SHORT TITLE
This Act may be cited as the Coral Reef Conservation and Protection Act of 2000.
SECTION 2. FINDINGS
The Congress finds the following:
(1) Coral reefs and coral reef ecosystems are the marine equivalent of tropical rain forests, containing some of the richest biological diversity, habitats, and systems on Earth and supporting thousands of fish, invertebrates, algae, plankton, sea grasses, and other species.
(2) Coral reefs and coral reef ecosystems have great commercial, recreational, cultural, and aesthetic value to human communities as shoreline protection, areas of natural beauty, and sources of food, jobs, and pharmaceuticals, and are the focus of a wide variety of activities, including education, research, recreation, tourism, and fishing.
(3) Studies indicate that coral reef ecosystems in the United States and around the world are being degraded and severely threatened by human activities including land-based pollution, overfishing, destructive fishing practices, coastal development, vessel groundings, and climate change.
(4) Executive Order 13089 created the United States Coral Reef Task Force, which is chaired by the Secretaries of the Interior and of Commerce, and required it to develop measures necessary to reduce and mitigate coral reef ecosystem degradation and to restore damaged coral reefs, assess the United States’ role in international trade and protection of coral reef species, and implement appropriate strategies and actions to promote conservation and sustainable use of coral reef resources.
(5) International trade in coral, other reef invertebrates, reef fish, live rock and coral gravel contributes to the decline and degradation of reefs, primarily through the use of destructive collection practices, overexploitation of resources, and loss of reef habitat.
(6) The United States is the largest importer of live coral, live rock and marine fish for the aquarium trade and of coral skeletons and precious corals for souvenirs and jewelry.
(7) Harvesting of live coral and wild live rock is of special concern because it removes essential components of reef habitat, increases erosion, and damages critical fisheries habitat.
(8) More than half of the fish imported into the United States for the marine aquarium market are estimated to be captured with the use of cyanide and other poisons that kill other coral reef species and the corals that form the reef framework. Such destructive fishing practices are becoming increasingly common in other countries to meet the growing worldwide demand for ornamental fish and live food fish.
(9) As many as one-third to one-half of the aquarium fishes imported from Southeast Asia die shortly after arrival in the United States, due to stresses associated with handling and transport, and to the use of cyanide during capture. Such high mortality leads to continued pressure for extraction from the wild to maintain public and private collections.
(10) The United States, as the world’s largest importer of coral reef species and products and as a party to the Convention on the International Trade in Endangered Species of Wild Fauna and Flora, should play a substantial role in conserving and restoring coral reef ecosystems, including assisting other countries in developing and implementing coral reef conservation programs, and ensuring that the market in the United States for coral reef species and products does not contribute to the detriment of the survival of the species in the wild or to the detriment of coral reef ecosystems.
(11) The United States should also exercise leadership in moving from a species-based sustainable management approach to an ecosystem-based approach, both nationally and internationally.
(12) This Act provides a series of nondiscriminatory measures that are necessary for the conservation of coral reef species, and furthers the obligations of the United States under the Convention.
SECTION 3. DEFINITIONS
In this Act –
(1) The term "Convention" means the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), as amended, signed in Washington on March 3, 1973, and the Appendices thereto.
(2) The term "coral" means any living or dead specimens, parts or derivatives, or any product containing specimens, parts or derivatives of any species of the phylum Cnidaria, including
(A) all species of black corals (Antipatharia), stony corals (Scleractinia), soft corals (Alcyonacea), horny corals (Gorgonacea), organ pipe corals (Stolonifera), and blue coral (Coenothecalia) of the class Anthozoa; and
(B) all species of the fire corals (Milleporina) and lace corals (Stylasterina) of the class Hydrozoa.
(3) The term "coral reef" means any reef, shoal, or other natural feature composed in part of the solid skeletal structures in which corals are major framework constituents.
(4) The term "coral reef ecosystem" means the interacting complex of species (including reef plants of the phyla Chlorophyta, Phaeophyta, and Rhodophyta) and nonliving variables associated with coral reefs and their habitats which function as an ecological unit in nature and which are mutually dependent on this function to survive.
(5) The term "coral reef species" means
(A) any species of plant or animal, including algae, seagrasses, invertebrates and vertebrates that live in, on, or near coral reefs and are directly dependent on the coral reef ecosystem for feeding, reproduction or growth, but does not include mammals, reptiles, or birds; and
(B) live rock.
(6) The term "foreign commerce" includes any transaction between persons within one foreign country, between persons in two or more foreign countries, between a person within the United States and a person in a foreign country, or between persons within the United States, where the coral reef species in question is moving in any country or countries outside the United States.
(7) 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, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the custom laws of the United States.
(8) The term "live rock" means any hard substrate that is attached to and supports any species identified in subparagraph (A) of the definition of "coral reef species."
(9) The term "person" means an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a State; or any other entity subject to the jurisdiction of the United States.
(10) The term "State" means a State, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory or possession of the United States.
(11) The term "take" means to capture, catch, collect or harvest coral reef species by any means.
(12) The term "United States" includes the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory or possession of the United States that contains coral within its jurisdiction.
(13) The term "waters under the jurisdiction of the United States" means the belt of seas extending to a distance of 200 nautical miles measured from the baseline from which the breadth of the territorial sea of the United States is measured, except where that distance is modified by maritime boundary agreements to which the United States is a party.
SECTION 4. PROHIBITED ACTS
(a) Generally Except as provided in section 5 of this Act, with respect to any coral reef species identified in subsection (b) of this Section, effective one year from the date of enactment of this Act, it shall be unlawful for any person to --
(1) take any such coral reef species within waters under the jurisdiction of the United States;
(2) import into or export from the United States any such coral reef species;
(3) possess, sell, purchase, deliver, carry, transport, or receive in interstate or foreign commerce any such coral reef species taken or imported in violation of subparagraphs (1) or (2); or
(4) attempt to commit any act described in subparagraphs (1) through (3).
(b) Species covered The coral reef species that are covered by this Section are –
(1) any coral reef species listed in Appendix II of the Convention as of the effective date of this Act;
(2) any coral reef species added to Appendix II of the Convention after the effective date of this Act, unless the Secretary of the Interior, in consultation with the Secretary of Commerce, finds within 90 days from the effective date of the inclusion of such species in Appendix II of the Convention that the take, import, and export of such species does not represent a substantial risk of harm to the sustainability of such species and its coral reef ecosystem; and
(3) any other coral reef species (excluding any finfish, mollusk, crustacean, or other animal or plant species taken for human consumption) as periodically determined by the Secretary of the Interior and the Secretary of Commerce, after notice and opportunity for public comment, the take, interstate commerce, import or export, of which (i) presents a substantial risk of harm to the sustainability of such species or of its coral reef ecosystem; or (ii) results in high mortality rates for individuals of that species due to poor survivorship in transport or captivity.
(c) Removal of species from coverage. (1) The Secretary of the Interior, in consultation with the Secretary of Commerce, shall have the authority to remove a species from coverage under subparagraphs (b)(1) and (b)(2) of this section, after opportunity for notice and comment, upon a finding that the take, interstate commerce, import and export of such species does not represent a substantial risk of harm to the sustainability of that species and of its coral reef ecosystem.
(2) The Secretary of the Interior and the Secretary of Commerce shall have the authority to remove a species from coverage under subparagraph (b)(3) of this section, after opportunity for notice and comment, upon a finding that the take, interstate commerce, import and export of such species does not represent a substantial risk of harm to the sustainability of that species and of its coral reef ecosystem.
SECTION 5. EXCEPTIONS
(a) General exceptions. The prohibitions in section 4(a) shall not apply if the coral reef species was:
(1) taken in waters under the jurisdiction of the United States or in waters under the jurisdiction of a foreign country in accordance with a qualified management plan meeting the requirements in subparagraph (c);
(2) a product of a qualified cooperative breeding program or aquaculture or mariculture facility meeting the requirements in subparagraph (d); or
(3) 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, zoological breeding or display.
(b) Subsistence. The prohibition in section 4(a)(1) shall not apply if the coral reef species was taken for personal consumption by a person, if such taking is customary, traditional or necessary for the sustenance of such person or that person’s family members. The coral reef species so taken cannot be sold.
(c) Qualified Management Plans. The Secretary shall determine that a scientifically based management plan is qualified for purposes of subparagraph (a)(1) of this section provided that the plan:
(1) provides for the conservation of the coral reef species and its habitat;
(2) provides that the coral reef species is taken in such a manner and in such quantities so as to not threaten the biological sustainability of that species and to minimize the adverse impact of such take on the coral reef;
(3) addresses factors relevant to the conservation of the coral reef species, which may include illegal trade, domestic trade, subsistence use, disease, habitat loss, and cumulative impacts of take on the coral reef species; and
(4) prohibits use of the destructive collection practices of reef-dredging, explosives, poisons, or other destructive practices identified pursuant to section 6(b) of this Act.
In the case of waters within the Exclusive Economic Zone as defined under 16 U.S.C. § 1802, a fishery management plan developed and approved pursuant to the Magnuson-Stevens Act, and which the Secretary of Commerce has determined satisfies subparagraphs (1) through (4), above may constitute a qualified management plan for purposes of subparagraph (a)(1) of this section. In the case of waters under the jurisdiction of the Secretary of the Interior, the Secretary of Interior shall determine whether a plan satisfies subparagraphs (1) through (4) above. In the case of waters within the jurisdiction of a State, a fishery management plan that is developed by a State and determined by the Secretary of Commerce, following the fishery management plan review procedures of the Magnuson-Stevens Act, to provide a level of protection for coral reef species comparable to that provided by a fishery management plan governing the Exclusive Economic Zone adjacent to that State, and which the Secretary of Commerce has determined satisfies subparagraphs (1) through (4) above, may constitute a qualified management plan for purposes of subparagraph (a)(1) of this section.
Unless otherwise stated, for purposes of this subsection, "Secretary" shall mean the Secretary of Commerce with regard to domestic management plans, and shall mean the Secretary of the Interior and the Secretary of Commerce with regard to foreign management plans.
(d) Qualified Cooperative Breeding Programs, Aquaculture or Mariculture Facilities.
(1) The Secretary shall determine that a cooperative breeding program qualifies for purposes of subparagraph (a)(2) of this section provided that it is
(A) designed to promote the conservation of the coral reef species and maintain the species in the wild by enhancing the propagation and survival of the species, and
(B) developed and administered by, or in conjunction with, an aquarium, conservation, or zoological organization that meets standards developed by the Secretary.
(2) The Secretary shall determine that an aquaculture or mariculture facility qualifies for purposes of subparagraph (a)(2) of this section provided that it
(A) demonstrates the capability of producing sufficient captive coral reef species in the numbers to be traded from that facility;
(B) operates in a manner that is not detrimental to the conservation of the species in the wild; and
(C) operates in a manner that does not harm the existing ecosystem, such as by the introduction of non-indigenous species.
For purposes of this subsection, "Secretary" shall mean the Secretary of Commerce with regard to domestic cooperative breeding programs, aquaculture or mariculture facilities, and shall mean the Secretary of the Interior and the Secretary of Commerce with regard to foreign cooperative breeding programs, aquaculture or mariculture facilities.
(e) Implementation. Within one year from the date of enactment of this Act, the Secretary of the Interior and the Secretary of Commerce shall promulgate such regulations as they deem necessary and appropriate to carry out the purposes of this section. The Secretary of the Interior and the Secretary of Commerce shall also have the authority to exempt by regulation the incidental take of coral reef species from the prohibitions in section 4(a) of this Act. During the period of time, if any, between the effective date of the prohibitions in section 4(a) of this Act and the effective date of the regulations provided for in this subparagraph, persons claiming the benefit of an exception under subparagraph (a) of this section shall certify that, to the best of their knowledge or belief, the coral reef species were not taken in a manner contrary to section 5(c)(2) or are products of programs or facilities meeting the criteria set out in sections 5(d)(1)(A), 5(d)(1)(B), 5(d)(2)(A), 5(d)(2)(B), and 5(d)(2)(C).
(f) Burden of Proof for Exceptions. Any person claiming the benefit of any exception under this Act shall have the burden of proving that the exception is applicable or has been granted, and was valid and in force at the time of the alleged violation.
SECTION 6. DESTRUCTIVE COLLECTION PRACTICES
(a) Prohibited collection practices. Notwithstanding sections 4 and 5, one year after enactment of this Act, it shall be unlawful for any person to:
(1) take any coral reef species in waters under the jurisdiction of the United States using the destructive collection practices of reef-dredging, explosives, poisons, or other destructive practices identified pursuant to subparagraph (b) of this section; or
(2) import or export any coral reef species without a certification by the importer or exporter that the coral reef species to be imported or exported was not taken through the use of the destructive collection practices of reef-dredging, explosives, poisons, or other destructive practices identified pursuant to subparagraph (b) of this section.
(b) Other destructive collection practices. The Secretary of Commerce, after notice and comment, and in consultation with the Secretary of the Interior and the advisory committee described in section 7(b), is authorized to identify and prohibit pursuant to regulation the use of other collection practices that are destructive to coral reefs.
SECTION 7. CONSULTATION REGARDING PROTECTION OF CORAL REEF SPECIES.
The Secretary of State, in consultation with the Administrator of the United States Agency for International Development, Secretary of the Interior and the Secretary of Commerce, upon enactment of this Act, may initiate consultations with foreign governments which are engaged in, or which have persons or companies engaged in, commercial operations which take coral reef species, with the purpose of such consultations being:
(a) to encourage protection of coral reef species through building consensus on standards for, and implementation of, sustainable management plans; and
(b) to take steps to eliminate of the use of destructive collection practices identified in section 6 of this Act or in regulations promulgated pursuant thereto.
SECTION 8. COORDINATION REGARDING CONSERVATION OF CORAL REEF ECOSYSTEMS.
(a) Generally. In carrying out this Act, the Secretary of the Interior and the Secretary of Commerce shall coordinate with members of the Coral Reef Task Force and affected stakeholders for the conservation and sustainable management of coral reef ecosystems.
(b) Advisory group. The Secretary of the Interior and the Secretary of Commerce shall convene an advisory group consisting of individuals representing public and private organizations affected by this Act. The advisory group will include persons involved in the conservation of coral reef ecosystems, the harvest and trade of coral reef species, and the operation of cooperative breeding programs, and aquaculture and mariculture facilities for the propagation of coral reef species, including other Federal agencies, States and territories represented on the Task Force. The Secretary of the Interior and the Secretary of Commerce, in consultation with the advisory group, shall develop:
(1) criteria and indicators for the conservation and sustainable management of coral reef ecosystems within one year of enactment of this Act;
(2) a coordinated national strategy for conservation and sustainable management of coral reef species and ecosystems upon completion of the criteria and indicators described in subparagraph (b)(1); and
(3) guidelines for transportation and handling of coral reef species that would improve survival in commerce within one year of enactment of this Act.
(c) International cooperation. The Department of State and the United States Agency for International Development, in coordination with other appropriate agencies, may utilize their authorities in furtherance of the purposes of this Act to encourage policies and implement programs for the conservation and sustainable management of coral reef ecosystems in other parts of the world, such as through multilateral negotiations, participation in various international fora, bilateral assistance, and capacity building.
SECTION 9. ENFORCEMENT
(a) Administrative penalties. (1) Any person who violates any provision of sections 4(a) or 6 of this Act, or of regulations issued under authority thereof, may be assessed a civil penalty by the Secretary of the Interior or the Secretary of Commerce of not more than $25,000 for each violation. Each violation and each day of continuing violation shall be a separate offense. No penalty may be assessed under this subsection unless such person is given notice and opportunity for a hearing with respect to such violation. In determining the amount of such penalty, the Secretary shall take into account the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offenses, and such other matters as justice may require. In assessing such penalty the Secretary may also consider any information provided by the violator relating to the ability of the violator to pay, provided that the information is served on the Secretary at least 30 days prior to an administrative hearing. Any person against whom a civil penalty is assessed may obtain review thereof in in the United States district court for the appropriate district by filing a complaint against the Secretary in such court within 30 days form the date of such order. The Secretary shall promptly file in such court a certified copy of the record upon which such violation was found or such penalty imposed, as provided in section 2112 of title 28, united States Code. The findings and order of the Secretary shall be set aside by such court if they are not found to be supported by substantial evidence, as provided in section 607(2) of title 5, United States Code. If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order, or after the appropriate court has entered final judgment in favor of the Secretary, the Secretary shall refer the matter to the Attorney General of the United States, who shall recover the amount assessed in any appropriate district court of the United States. In such action, the validity and appropriateness of the final order imposing the civil penalty shall not be subject to review.
(2) Hearings held during proceedings for the assessment of civil penalties authorized by paragraph (1) of this subsection shall be conducted in accordance with section 554 of Title 5. The Secretary of the Interior or the Secretary of Commerce may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and administer oaths. Witnesses summoned shall be paid the same fees and mileage that are paid to witnesses in the courts of the United States. In case of contumacy or refusal to obey a subpoena served upon any person pursuant to this paragraph, the district court of the United States for any district in which such person is found or resides or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the Secretary of the Interior or the Secretary of Commerce or to appear and produce documents before the Secretary, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof.
(b) Civil actions. The Attorney General is authorized to commence a civil action in a district court of the United States for appropriate relief, including a permanent or temporary injunction and civil penalties of not more than $25,000 for each violation, for any violation of sections 4(a) or 6 of this Act or regulations issued under authority thereof.
(c) Criminal offenses. (1) Any person who knowingly violates and any person engaged in business as an importer or exporter of coral reef species who violates sections 4 or 6 of this Act, or any regulations issued under authority thereof, shall be fined under title 18, United States Code, or imprisoned for not more than 2 years, or both.
(2) Any person who violates any provision of this Act, or any regulations issued under authority thereof shall be fined under Title 18, imprisoned not more than 6 months, or both.
(3) Any person who knowingly makes, cause to be made, or submits, any false material statement or representation in any certification required by this Act which is intended to be used for the import, export, transport, sale, purchase, receipt or purchase of any coral reef species in interstate or foreign commerce shall upon conviction, be punished by a fine under Title 18, United States Code, or imprisonment of not more than two years or both. If the false material statement or representation is made in a certification required by section 6 of this Act, the person may also be punished by prohibiting the person from the import or export of any coral reef species. The United States shall not be liable for the payments of any compensation, reimbursement, or damages in connection with such prohibition.
(d) District court jurisdiction. The several district courts of the United States, including the courts enumerated in section 460 of Title 28, shall have jurisdiction over any actions arising under this Act . The venue provisions of Title 18 and Title 28 shall apply to any actions arising under this chapter. For the purpose of this Act, American Samoa shall be included within the judicial district of the District Court of the United States for the District of Hawaii. The judges of the district courts of the United States and the United States magistrate judges may, within their respective jurisdictions, upon proper oath or affirmation showing probable cause, issue such warrants or other process as may be required for enforcement of this Act and any regulation issued thereunder.
(e) Rewards and incidental expenses. The Secretary of the Interior or the Secretary of Commerce may pay, from sums received as penalties, fines, or forfeitures of property for any violation of sections 4(a) or 6 of this Act or any regulation issued hereunder (1) a reward to any person who furnishes information which leads to an arrest, a criminal conviction, civil penalty assessment, or forfeiture of property for any violation of this Act or any regulation issued hereunder, and (2) the reasonable and necessary costs incurred by any person in providing temporary care for any coral reef species pending the disposition of any civil or criminal proceeding alleging a violation of this Act. The amount of the reward, if any, is to be designated by the Secretary of the Interior or the Secretary of Commerce. Any officer or employee of the United States or any State or local government who furnishes information or renders service in the performance of his official duties is ineligible for payment under this subsection.
(f) Enforcement. (1) The provisions of this Act and any regulations issued pursuant thereto shall be enforced by the Attorney General, Secretary of the Interior or the Secretary of Commerce, the Secretary of the Treasury, or the Secretary of the Department in which the Coast Guard is operating. Each such Secretary may utilize by agreement, with or without reimbursement, the personnel, services, and facilities of any other Federal agency or any State agency for purposes of enforcing this Act.
(2) Any person authorized by the Secretary of the Interior or the Secretary of Commerce, the Secretary of the Treasury, or the Secretary of the Department in which the Coast Guard is operating, to enforce this Act may detain for inspection and inspect any package, crate, or other container, including its contents, and all accompanying documents, upon importation or exportation. Such person may make arrests without a warrant for any violation of this Act if he has reasonable grounds to believe that the person to be arrested is committing the violation in his presence or view, and may execute and serve any arrest warrant, search warrant, or other warrant or civil or criminal process issued by any officer or court of competent jurisdiction for enforcement of this Act. Such person so authorized may search and seize, with or without a warrant, as authorized by law. Any coral reef species so seized shall be held by any person authorized by the Secretary of the Interior or the Secretary of Commerce, the Secretary of the Treasury, or the Secretary of the Department in which the Coast Guard is operating pending disposition of civil or criminal proceedings, or the institution of an action in rem for forfeiture of such coral reef species pursuant to paragraph (4) of this subsection; except that the Secretary may, in lieu of holding such species, permit the owner or consignee to post a bond or other surety satisfactory to the 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 Secretary in such a manner, consistent with the purposes of this Act, as the Secretary shall by regulation prescribe.
(3) If any officer authorized to enforce the provisions of this Act finds that a person has violated any provision of sections 4(a) or 6 of this Act, such officer may, in accordance with regulations issued by the Secretary of Commerce, Secretary of the Interior and the Secretary of the department in which the Coast Guard is operating, issue a citation to the violator in lieu of proceeding under subparagraph (2) of this subsection.
(4)(A) All coral reef species taken, imported, exported, possessed, sold, delivered, carried, transported, or received contrary to the provisions of sections 4(a) or 6 of this Act, or any regulation issued under authority thereof, shall be subject to forfeiture to the United States. For purposes of this subparagraph, the presence in coral reef species of cyanide or other poisons or their associated metabolites shall constitute evidence of using poison to take coral reef species.
(B) All guns, traps, nets, and other equipment, vessels, vehicles, aircraft, and other means of transportation used to aid the taking, importing, exporting, possessing, selling, purchasing, delivering, carrying, transporting, or receiving of any coral reef species in violation of sections 4(a) or 6 of this Act, or any regulation issued under authority thereof, shall be subject to forfeiture to the United States upon conviction of a criminal violation pursuant to subsections (b)(1) or (b)(2) of this section.
(5) All provisions of law relating to the seizure, forfeiture, and condemnation of a vessel for violation of the customs laws, the disposition of such vessel or the proceeds from the sale thereof, and the remission or mitigation of such forfeiture, shall apply to the seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this Act, insofar as such provisions of law are applicable and not inconsistent with the provisions of this Act; except that all powers, rights, and duties conferred or imposed by the customs laws upon any officer or employee of the Treasury Department shall, for the purposes of this Act, be exercised or performed by the Secretary or by such persons as he may designate.
(g) Citizen suits. (1) Except as provided in paragraph (2) of this subsection any person may commence a civil suit to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of sections 4(a) or 6 of this Act or regulations issued under the authority thereof. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce any such provision or regulation.
(2) No action may be commenced under this section --
(A) prior to sixty days after written notice of the violation has been given to the Secretary of the Interior and the Secretary of Commerce, and to any alleged violator of any such provision or regulation;
(B) if either the Secretary of the Interior or the Secretary of Commerce has commenced and is diligently prosecuting an action to impose a penalty pursuant to subsection (a) of this section; or
(C) if the United States has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State to redress a violation of any such provision or regulation.
(3) Any suit under this subsection may be brought in the judicial district in which the violation occurs. In any such suit under this subsection 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.
(4) The court, in issuing any final order in any suit brought pursuant to paragraph (1) of this subsection, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.
(5) The injunctive relief provided by this subsection 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.
(h) Regulations. The Secretary of the Interior, the Secretary of Commerce, the Secretary of the Treasury, and the Secretary of the Department in which the Coast Guard is operating, are authorized to promulgate such regulations as may be appropriate to enforce this Act, and charge reasonable fees for expenses connected with reviewing certificates authorized by this Act including processing applications and reasonable inspections, and with the transfer, board, handling, or storage of coral reef species and evidentiary items seized and forfeited under this Act. All such fees collected pursuant to this subsection shall be deposited in the Treasury to the credit of the appropriation which is current and chargeable for the cost of furnishing the services. Appropriated funds may be expended pending reimbursement from parties in interest.
SECTION 10. AUTHORIZATION OF APPROPRIATIONS
(1) There is authorized to be appropriated to the Secretary of the Interior $5,000,000 for each of fiscal years 2002, 2003, 2004, 2005, and 2006 to carry out the provisions of this Act.
(2) There is authorized to be appropriated to the Secretary of Commerce $1,750,000 for each of fiscal years 2002, 2003, 2004, 2005, and 2006 to carry out the provisions of this Act.
(3) There is authorized to be appropriated to the Secretary of State $200,000 for each of fiscal years 2002, 2003, 2004, 2005, and 2006 to carry out the provisions of this Act.
SECTION 11. RELATIONSHIP TO STATE LAWS
Nothing in this Act shall be construed or interpreted as preempting any State from imposing any more restrictive requirement regarding any coral reef species, provided that such requirement is consistent with the international obligations of the United States and any regulations promulgated by the Secretary of the Interior or the Secretary of Commerce to implement this Act.
SECTION 12. RELATIONSHIP TO FEDERAL FISHERY MANAGEMENT PLANS
Nothing in this Act shall be construed or interpreted as preempting any fishery management plan developed under the Magnuson-Stevens Act from containing management measures more restrictive than required by section 5 of this Act.
Reply to Mitch Gibbs,
Mitch, I agree with what you had to say in your last posting on this thread. The MAC has become inflexible and unresponsive to the rank and file in the hobby and the trade. One complaint is that Holthus is doing things without consulting with and building concensus with member organizations, represented on the MAC Board of Directors.
I have concerns about the way the MAC responsed to the DRAFT Coral Reef 2000 legislation created by the USCRTF Trade Subgroup. I am concerned with the way the MAC opposed the DRAFT legislation without consulting with its member organizations on the MAC BOD. I personally feel that the legislation was not as bad for the trade as the MAC painted it. Some of the present problems with MAC Certification, as it is now being applied, stem from the MAC trying to implement Certification (paper trail and segregating fish at each step of the chain of custody) without government checks and balances (e.g., lack of cyanide testing in the country or origin or in the USA to verify that MAC certified fish are cyanide-free).
Peter Rubec
Mitch, I agree with what you had to say in your last posting on this thread. The MAC has become inflexible and unresponsive to the rank and file in the hobby and the trade. One complaint is that Holthus is doing things without consulting with and building concensus with member organizations, represented on the MAC Board of Directors.
I have concerns about the way the MAC responsed to the DRAFT Coral Reef 2000 legislation created by the USCRTF Trade Subgroup. I am concerned with the way the MAC opposed the DRAFT legislation without consulting with its member organizations on the MAC BOD. I personally feel that the legislation was not as bad for the trade as the MAC painted it. Some of the present problems with MAC Certification, as it is now being applied, stem from the MAC trying to implement Certification (paper trail and segregating fish at each step of the chain of custody) without government checks and balances (e.g., lack of cyanide testing in the country or origin or in the USA to verify that MAC certified fish are cyanide-free).
Peter Rubec
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