42 U.S.C. § 9152 — Remedies and penalties

Page 7688 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9151 eign commerce or foreign trade of the United States, as defined in section 109 of title 46. (Pub. L. 96–320, title II, § 201, Aug. 3, 1980, 94 Stat. 991.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a)(1) and (b), was in the original ‘‘this Act’’, meaning Pub. L. 96–320, Aug. 3, 1980, 94 Stat. 974, known as the Ocean Thermal En- ergy Conversion Act of 1980, which is classified prin- cipally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 9101 of this title and Tables. The Merchant Marine Act, 1936, referred to in subsec. (b), is act June 29, 1936, ch. 858, 49 Stat. 1985, which was classified principally to chapter 27 (§ 1101 et seq.) of the former Appendix to Title 46, Shipping. The Act, with the exception of title V, most of title VI, and sections 301, 801, 802, 809(a), and 909 thereof, was repealed and re- stated, mainly in subtitle V of Title 46, by Pub. L. 109–304, §§ 8, 19, Oct. 6, 2006, 120 Stat. 1555, 1710. Title V and sections 301 and 909 of the Act are set out as notes under section 53101 of Title 46. Those portions of title VI not repealed by Pub. L. 109–304 and sections 802 and 809(a) of the Act were repealed by Pub. L. 114–120, title III, § 313(a), Feb. 8, 2016, 130 Stat. 58. Section 801 of the Act was transferred to section 57522 of Title 46 by Pub. L. 114–120, title III, § 313(c)(1)(A), Feb. 8, 2016, 130 Stat. 58. For complete classification of the Act to the Code, see Tables. For disposition of sections of the former Ap- pendix to Title 46, see Disposition Table preceding sec- tion 101 of Title 46. CODIFICATION In subsec. (a)(1), ‘‘chapter 535 of title 46’’ substituted for ‘‘section 607 of the Merchant Marine Act, 1936 (46 U.S.C. 1177)’’ and in subsec. (b), ‘‘section 109 of title 46’’ substituted for ‘‘section 905(a) of the Merchant Marine Act, 1936 (46 U.S.C. 1244(a))’’ on authority of Pub. L. 109–304, § 18(c), Oct. 6, 2006, 120 Stat. 1709, which Act en- acted chapter 535 and section 109 of Title 46, Shipping. SUBCHAPTER III—ENFORCEMENT § 9151. Prohibited acts It is unlawful for any person who is a United States citizen or national, or a foreign national in or on board an ocean thermal energy conver- sion facility or plantship or on board any vessel documented or numbered under the laws of the United States, or who is subject to the jurisdic- tion of the United States by an international agreement to which the United States is a party— (1) to violate any provision of this chapter; or any rule, regulation, or order issued pursu- ant to this chapter; or any term or condition of any license issued to such person pursuant to this chapter; (2) to refuse to permit any Federal officer or employee authorized to monitor or enforce the provisions of sections 9120 and 9153 of this title to enter or board an ocean thermal energy conversion facility or plantship or any vessel documented or numbered under the laws of the United States, for purposes of conducting any search or inspection in connection with the monitoring or enforcement of this chapter or any rule, regulation, order, term, or condition referred to in paragraph (1) of this section; (3) to forcibly assault, resist, oppose, im- pede, intimidate, or interfere with any such authorized officer or employee in the conduct of any search or inspection described in para- graph (2) of this section; (4) to resist a lawful arrest for any act pro- hibited by this section; or (5) to interfere with, delay, or prevent, by any means, the apprehension or arrest of an- other person subject to this section knowing that the other person has committed any act prohibited by this section. (Pub. L. 96–320, title III, § 301, Aug. 3, 1980, 94 Stat. 994; Pub. L. 98–623, title VI, § 602(a)(9), Nov. 8, 1984, 98 Stat. 3411.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in pars. (1) and (2), was in the original ‘‘this Act’’, meaning Pub. L. 96–320, Aug. 3, 1980, 94 Stat. 974, known as the Ocean Thermal Energy Conversion Act of 1980, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 9101 of this title and Tables. AMENDMENTS 1984—Pub. L. 98–623 substituted ‘‘in or on board an ocean thermal energy conversion facility or plantship or on board any vessel’’ for ‘‘on board an ocean thermal energy conversion facility or plantship or other vessel’’ in provisions preceding par. (1). Par. (2). Pub. L. 98–623 substituted ‘‘to enter or board’’ for ‘‘to board’’. § 9152. Remedies and penalties (a) Issuance and enforcement of orders (1) The Administrator or his delegate shall have the authority to issue and enforce orders during proceedings brought under this chapter. Such authority shall include the authority to issue subpenas, administer oaths, compel the at- tendance and testimony of witnesses and the production of books, papers, documents, and other evidence, to take depositions before any designated individual competent to administer oaths, and to examine witnesses. (2) Whenever on the basis of any information available to him the Administrator finds that any person subject to section 9151 of this title is in violation of any provision of this chapter or any rule, regulation, order, license, or term or condition thereof, or other requirements under this chapter, he may issue an order requiring such person to comply with such provision or re- quirement, or bring a civil action in accordance with subsection (b) of this section. (3) Any compliance order issued under this subsection shall state with reasonable speci- ficity the nature of the violation and a time for compliance, not to exceed 30 days, which the Ad- ministrator determines is reasonable, taking into account the seriousness of the violation and any good faith efforts to comply with applicable requirements. (b) Civil actions by Attorney General; equitable relief (1) Upon a request by the Administrator, the Attorney General shall commence a civil action for appropriate relief, including a permanent or temporary injunction, to halt any violation for which the Administrator is authorized to issue a Page 7689 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9153 compliance order under subsection (a)(2) of this section. (2) Upon a request by the Administrator, the Attorney General shall bring an action in an ap- propriate district court of the United States for equitable relief to redress a violation, by any person subject to section 9151 of this title, of any provision of this chapter, any regulation issued pursuant to this chapter, or any license condi- tion. (c) Civil penalties (1) Any person who is found by the Adminis- trator, after notice and an opportunity for a hearing in accordance with section 554 of title 5, to have committed an act prohibited by section 9151 of this title shall be liable to the United States for a civil penalty, not to exceed $25,000 for each violation. Each day of a continuing vio- lation shall constitute a separate violation. The amount of such civil penalty shall be assessed by the Administrator, or his designee, by writ- ten notice. In determining the amount of such penalty, the Administrator shall take into ac- count the nature, circumstances, extent and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpa- bility, any history of prior offenses, ability to pay, and such other matters as justice may re- quire. (2) Any person against whom a civil penalty is assessed under paragraph (1) of this subsection may obtain a review thereof in the appropriate court of the United States by filing a notice of appeal in such court within 30 days from the date of such order and by simultaneously send- ing a copy of such notice by certified mail to the Administrator. The Administrator shall prompt- ly 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. The findings and order of the Ad- ministrator shall be set aside by such court if they are not found to be supported by substan- tial evidence, as provided in section 706(2) of title 5. (3) If any person subject to section 9151 of this title fails to pay an assessment of a civil penalty against him after it has become final, or after the appropriate court has entered final judg- ment in favor of the Administrator, the Admin- istrator shall refer the matter to the Attorney General of the United States, who shall recover the amount assessed in any appropriate 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. (4) The Administrator may compromise, mod- ify, or remit, with or without conditions, any civil penalty which is subject to imposition or which has been imposed under this subsection. (d) Criminal penalties (1) Any person subject to section 9151 of this title is guilty of an offense if he willfully com- mits any act prohibited by such section. (2) Any offense, other than an offense for which the punishment is prescribed by section 9113 of this title, is punishable by a fine of not more than $75,000 for each day during which the violation continues. Any offense described in paragraphs (2), (3), (4), and (5) of section 9151 of this title is punishable by the fine or imprison- ment for not more than 6 months, or both. If, in the commission of any offense, the person sub- ject to section 9151 of this title uses a dangerous weapon, engages in conduct that causes bodily injury to any Federal officer or employee, or places any Federal officer or employee in fear of imminent bodily injury, the offense is punish- able by a fine of not more than $100,000 or im- prisonment for not more than 10 years, or both. (e) In rem liability of vessels Any ocean thermal energy conversion facility or plantship licensed pursuant to this chapter and any other vessel documented or numbered under the laws of the United States, except a public vessel engaged in noncommercial activi- ties, used in any violation of this chapter or of any rule, regulation, order, license, or term or condition thereof, or other requirements of this chapter, shall be liable in rem for any civil pen- alty assessed or criminal fine imposed and may be proceeded against in any district court of the United States having jurisdiction thereof, when- ever it shall appear that one or more of the own- ers, or bareboat charterers, was at the time of the violation a consenting party or privy to such violation. (Pub. L. 96–320, title III, § 302, Aug. 3, 1980, 94 Stat. 995; Pub. L. 98–623, title VI, § 602(e)(5), Nov. 8, 1984, 98 Stat. 3412.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a)(1), (2), (b)(2), and (e), was in the original ‘‘this Act’’, meaning Pub. L. 96–320, Aug. 3, 1980, 94 Stat. 974, known as the Ocean Thermal Energy Conversion Act of 1980, which is classi- fied principally to this chapter. For complete classi- fication of this Act to the Code, see Short Title note set out under section 9101 of this title and Tables. AMENDMENTS 1984—Subsec. (b)(1). Pub. L. 98–623 substituted ‘‘to halt any violation’’ for ‘‘any violation’’. § 9153. Enforcement (a) Enforcement responsibility of Administrator of National Oceanic and Atmospheric Admin- istration; Coast Guard Except where a specific section of this chapter designates enforcement responsibility, the pro- visions of this chapter shall be enforced by the Administrator. The Secretary of the department in which the Coast Guard is operating shall have exclusive responsibility for enforcement meas- ures which affect the safety of life and property at sea, shall exercise such other enforcement re- sponsibilities with respect to vessels subject to the provisions of this chapter as are authorized under other provisions of law, and may, upon the specific request of the Administrator, assist the Administrator in the enforcement of any provision of this chapter. The Administrator and the Secretary of the department in which the Coast Guard is operating may, by agreement, on a reimbursable basis or otherwise, utilize the personnel, services, equipment, including air- craft and vessels, and facilities of any other Fed- eral agency or department, and may authorize