16 U.S.C. § 4015 — Termination of a council

Page 2464 TITLE 16—CONSERVATION § 4013 (3) This subsection shall not prohibit— (A) the issuance of general or statistical statements based upon reports of a number of persons subject to the provisions of this chap- ter which do not identify the information fur- nished by any person; or (B) the publication by direction of the Sec- retary of the name of any person violating a requirement relating to an assessment im- posed under subsection (a) of this section or to quality standards implemented by the Sec- retary under section 4010(c) of this title, and a statement of the particular provisions of the requirement violated by such person. (4) Any individual who is required to keep in- formation confidential under this subsection and who knowingly violates this subsection shall, upon conviction, be— (A) subject to a fine of not more than $1,000 or to imprisonment for not more than one year, or both; and (B) removed from office if an officer or em- ployee of a council or the Department of Com- merce. (Pub. L. 99–659, title II, § 213, Nov. 14, 1986, 100 Stat. 3727.) § 4013. Petitions (a) Filing of petition Any person subject to assessment under sec- tion 4012 of this title may file a written petition with the Secretary alleging that— (1) the assessment, (2) the plan approved under section 4011(a)(1) of this title on which the assessment is based, or (3) any obligation imposed under the plan, is not in accordance with law and requesting the Secretary to modify or take other appropriate action regarding the assessment or plan. (b) Form of petition Any such petition shall be in writing and filed within the period prescribed by the Secretary. A person who files a petition under this section shall be given an opportunity for a hearing re- garding the petition in accordance with regula- tions issued by the Secretary. After such a hear- ing, or if no hearing is requested, after consider- ation of all documentation and other evidence, the Secretary shall make a ruling upon such pe- tition. (Pub. L. 99–659, title II, § 214, Nov. 14, 1986, 100 Stat. 3728.) § 4014. Refunds Notwithstanding any other provision of this chapter, any person who pays an assessment under this chapter may demand and shall promptly receive from the council a refund of such assessment. A demand for refund must be made in accordance with the procedures, and within such time, as shall be prescribed by the council and approved by the Secretary. Proce- dures to provide such a refund shall be estab- lished before any such assessment may be col- lected. Such procedures shall allow any person to request a refund for not less than ninety days from such collection, and provide that any such refund shall be made within sixty days after de- mand for such refund is made. (Pub. L. 99–659, title II, § 215, Nov. 14, 1986, 100 Stat. 3728.) § 4015. Termination of a council (a) Petition for termination (1) A petition to terminate a council may be filed with the Secretary by no less than three sector participants in any one sector. Any peti- tion filed under this subsection shall be accom- panied by a written document explaining the reasons for such petition. (2) If the Secretary determines that a petition filed under paragraph (1) of this subsection is ac- companied by the signatures, or corporate cer- tifications, as the case may be, of no less than three sector participants in a sector referred to in paragraph (1) of this subsection who collec- tively accounted for, in the twelve-month period immediately preceding the month in which such petition was filed, not less than 20 percent of the value of the fish or fish products described in ac- cordance with section 4009(b)(3) of this title that were handled by that sector during such period, the Secretary, within 90 days after such deter- mination, shall conduct a referendum for termi- nation of the council among all sector partici- pants in that sector. (3) Not less than 30 days prior to holding a ref- erendum under this subsection, the Secretary shall publish a notice of such referendum, in- cluding the document explaining the reasons for the petition filed under paragraph (1) of this subsection and any other relevant information the Secretary considers appropriate. (4) If the referendum votes which are cast in favor of terminating the council constitute a majority of the sector participants voting and the majority, in the period referred to in para- graph (2) of this subsection, collectively ac- counted for not less than sixty-six percent of the value of such fish and fish products that were handled during such period by a sector referred to in paragraph (1) of this subsection, the Sec- retary shall by order terminate the council ef- fective as of a date by which the affairs of the council may be concluded on an orderly basis. (5) The Secretary initially shall pay all costs of a referendum conducted under this sub- section. Prior to conducting such a referendum, the Secretary shall require petitioners to post a bond or other security acceptable to the Sec- retary in an amount which the Secretary deter- mines to be sufficient to pay any expenses in- curred for the conduct of such referendum. (6)(A) If a referendum conducted under this subsection fails to result in the termination of the council, the Secretary shall immediately re- cover the amount of the bond posted by peti- tioners under paragraph (5) of this subsection. (B) If a referendum conducted under this sub- section results in the termination of the coun- cil, the Secretary shall recover the expenses in- curred for the conduct of the referendum from the account established by the council under section 4012(e) of this title. If the amount re- maining in such account is insufficient for the Secretary to recover all expenses incurred for the conduct of the referendum, the Secretary Page 2465 TITLE 16—CONSERVATION § 4017 shall recover the balance of such expenses from the petitioners that posted a bond under para- graph (5) of this subsection. (b) Payment of remaining funds If a council is terminated under subsection (a) of this section, the Secretary, after recovering all expenses incurred for the conduct of the ref- erendum under subsection (a) of this section, shall take such action as is necessary and prac- ticable to ensure that moneys remaining in the account established by the council under section 4012(e) of this title are paid on a prorated basis to the sector participants from whom those moneys were collected under section 4012 of this title. (Pub. L. 99–659, title II, § 216, Nov. 14, 1986, 100 Stat. 3728.) § 4016. Enforcement (a) Authority (1) The district courts of the United States shall have jurisdiction specifically to enforce and to prevent and restrain any person from vio- lating any assessment, order or regulation made or issued under this chapter. (2)(A) If a council has reason to believe that a person subject to an assessment, order or regula- tion made or issued under this chapter is vio- lating such assessment, order or regulation, it may refer the matter to the Secretary. (B) Except as provided in subparagraphs (C) or (D) of this paragraph, any civil action author- ized to be brought under this subsection, when referred by a council under subparagraph (A) of this paragraph, shall be referred to the Attorney General for appropriate action. (C) If the Secretary believes that the adminis- tration and enforcement of the provisions of this chapter would be adequately served by taking administrative action under subsection (b) of this section or by providing written notice or warning to any person committing a violation of this chapter, the Secretary is not required to refer such violation to the Attorney General. (D) Whenever a matter has been referred by a council under subparagraph (A) of this para- graph and the Secretary or the Attorney Gen- eral fails within 60 days of such referral to take appropriate action, the council may, upon filing notice with the Secretary or Attorney General, as appropriate, and other interested parties, bring an action in its own name. (b) Recovery of costs (1)(A) When a council brings an action under subsection (a)(2) of this section, the council may recover costs of litigation and, where the action is brought to collect an unpaid assessment, in- terest from the date the amount became due and payable. (B) Any person who violates any provision of an order (including a cease and desist order pre- viously issued under this paragraph) or regula- tion issued by the Secretary under this chapter, or who fails or refuses to pay, collect, or remit any assessment required under this chapter, may be assessed a civil penalty by the Secretary of not less than $500 nor more than $5,000 for each such violation. Each violation shall be a separate offense. In addition to, or in lieu of, a civil penalty under this subparagraph, the Sec- retary may issue an order requiring such person to cease and desist from continuing such viola- tion. (C) No penalty shall be assessed, or cease and desist order issued, under this paragraph unless the affected person is given notice and oppor- tunity for a hearing before the Secretary with respect to such violation. (D) Any order of the Secretary under this paragraph assessing a penalty or imposing a cease and desist order shall be final and conclu- sive, unless the affected person files an appeal from the Secretary’s order with the appropriate United States court of appeals. (2)(A) Any person against whom a violation is found under paragraph (1) of this subsection may obtain review of such action in the United States court of appeals for the circuit in which such person resides or has his place of business, or in the United States Court of Appeals for the District of Columbia Circuit, by filing a notice of appeal in such court within thirty days after the date of such order and by simultaneously sending a copy of such notice by certified mail to the Secretary. (B) The Secretary shall promptly file in the court a certified copy of the record upon which such violation was found. (C) The findings of the Secretary shall be set aside only if found to be unsupported by sub- stantial evidence or not in accordance with law. (3)(A) If any person fails to pay a civil penalty under this subsection after it has become final, the Secretary shall refer the matter to the At- torney General. (B) The Attorney General shall institute ap- propriate action to recover the amount assessed under this subsection in a district court of the United States. (C) If, within sixty days after such referral, the Attorney General fails to institute such ap- propriate action, the council to whose programs the assessment, order or regulation relates may institute an action in its own name. (Pub. L. 99–659, title II, § 217, Nov. 14, 1986, 100 Stat. 3730.) § 4017. Investigations (a) Authority to make investigations The Secretary may make such investigations as the Secretary determines necessary to— (1) carry out the Secretary’s responsibilities under this chapter; and (2) determine whether any person has en- gaged in any act or practice which constitutes a violation of the provisions of this chapter. (b) Oaths and affirmations For the purpose of investigations under sub- section (a) of this section, the Secretary may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evi- dence, and require the production of any books, papers, and documents which are relevant to the inquiry. The attendance of such witnesses and the production of any such records may be re- quired from any place in the United States. (c) Court orders In case of contumacy or refusal to obey a sub- poena issued under this section by any person,