16 U.S.C. § 973f — Civil penalties

Page 1582 TITLE 16—CONSERVATION § 973e 1 So in original. ‘‘Code’’ probably should not appear. § 973e. Criminal offenses (a) Prohibited acts A person is guilty of a criminal offense if he or she commits any act prohibited by section 973c(a)(8), (10), (11), or (12) of this title. (b) Sentence and fine Any offense described in subsection (a) of this section is punishable by a fine of not more than $50,000, or imprisonment for not more than 6 months, or both; except that if in the commis- sion of any such offense the person uses a dan- gerous weapon, engages in conduct that causes bodily injury to any Authorized Officer, Author- ized Party Officer, or observer under the Treaty in the conduct of their duties, or places any such Authorized Officer, Authorized Party Officer, or observer in fear of imminent bodily injury, the offense is punishable by a fine of not more than $100,000 or imprisonment for not more than 10 years, or both. (c) Jurisdiction The district courts of the United States shall have jurisdiction over any offense described in this section. (Pub. L. 100–330, § 7, June 7, 1988, 102 Stat. 594.) § 973f. Civil penalties (a) Determination of liability; amount; participa- tion by Secretary of State in assessment pro- ceeding Any person who is found by the Secretary, after notice and an opportunity for a hearing in accordance with section 554 of title 5, to have committed an act prohibited by section 973c of this title, shall be liable to the United States Code 1 for a civil penalty. Before issuing a notice of violation, the Secretary shall consult with the Secretary of State. The amount of the civil penalty shall be determined in accordance with considerations set forth in the Treaty and shall take into account the nature, circumstances, ex- tent, and gravity of the prohibited acts com- mitted, and with respect to the violator, the de- gree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require. Except for those acts prohibited by section 973c(a)(4), (5), (7), (8), (10), (11), and (12), and section 973c(b)(1), (2), (3), and (7) of this title, the amount of the civil penalty shall not exceed $250,000 for each violation. Upon written notice, the Secretary of State shall have the right to participate in any proceeding initiated to assess a civil penalty for violation of this chapter. (b) Judicial review of assessment; procedures ap- plicable Any person against whom a civil penalty is as- sessed under subsection (a) of this section may obtain review thereof in the United States dis- trict court for the appropriate district by filing a complaint in such court within 30 days from the date of the order and by simultaneously serving a copy of the complaint by certified mail on the Secretary, the Attorney General of the United States, and the appropriate United States Attorney. The Secretary shall promptly file in the court a certified copy of the record upon which the violation was found or the pen- alty imposed. The findings and order of the Sec- retary shall be set aside or modified by the court if they are not found to be supported by substantial evidence, as provided in section 706(2) of title 5. (c) Failure to pay assessment of civil penalty; re- covery by Attorney General Except as provided in subsection (g) of this section, 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. (d) In rem liability for civil penalty; jurisdiction; maritime lien on vessel Except as provided in subsection (g) of this section, a fishing vessel (including its fishing gear, furniture, appurtenances, stores, and cargo) used in the commission of an act prohib- ited by section 973c of this title shall be liable in rem for any civil penalty assessed for the viola- tion under this section and may be proceeded against in any district court of the United States having jurisdiction thereof. The penalty shall constitute a maritime lien on the vessel which may be recovered in an action in rem in the district court of the United States having jurisdiction over the vessel. (e) Compromise, etc., of civil penalty The Secretary, after consultation with the Secretary of State, may compromise, modify, or remit, with or without conditions, any civil pen- alty which is subject to imposition or which has been imposed under this section. (f) Conduct of hearings For the purposes of conducting any hearing under this section, the Secretary may issue sub- poenas for the attendance and testimony of wit- nesses and the production of relevant papers, books, and documents, and may 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 contempt or refusal to obey a subpoena served upon a person pursuant to this subsection, the district court of the United States for any dis- trict in which the person is found, resides, or transacts business, upon application by the United States and after notice to the person, shall have jurisdiction to issue an order requir- ing the person to appear and give testimony be- fore the Secretary or to appear and produce doc- uments before the Secretary, or both, and any failure to obey the order of the court may be punished by the court as a contempt thereof. (g) Waiver of referral to Attorney General If a vessel used in a violation of section 973c(a)(1), (2), (3), (4), (5), (6), (7), (8), (9), or (13) or section 973c(b) of this title for which a civil penalty has been assessed— (1) had a valid license under the Treaty at the time of the violation, and Page 1583 TITLE 16—CONSERVATION § 973g 1 See References in Text note below. 2 So in original. The dash probably should be a semicolon. 3 So in original. Probably should be capitalized. (2) within 60 days after the penalty assess- ment has become final, leaves and remains outside of the Licensing Area, all Limited Areas closed to fishing, and all Closed Areas until the final penalty has been paid, there shall be no referral to the Attorney Gen- eral under subsection (c) of this section or in rem action under subsection (d) of this section in connection with such civil penalty. (Pub. L. 100–330, § 8, June 7, 1988, 102 Stat. 594; Pub. L. 100–350, § 4(1), (2), June 27, 1988, 102 Stat. 660.) Editorial Notes AMENDMENTS 1988—Subsec. (a). Pub. L. 100–350, § 4(1), substituted ‘‘and gravity’’ for ‘‘any gravity’’ and ‘‘history of prior’’ for ‘‘history or prior’’. Subsec. (g)(1). Pub. L. 100–350, § 4(2), substituted ‘‘Treaty’’ for ‘‘Treasury’’. § 973g. Licenses (a) Issuance; establishment of procedures; des- ignation of agent for service of legal process in license application; reception and re- sponse to process Licenses to fish in the Licensing Area, to be issued by the Administrator in accordance with the Treaty, may be requested from the Sec- retary by operators of vessels, under procedures established by the Secretary. The license appli- cation shall designate an agent for the service of legal process to be located in Port Moresby, Papua New Guinea. The applicant shall ensure that the designated agent for service of process, acting on behalf of the license holder, will re- ceive and respond to any legal process issued in accordance with the Treaty and will, within 21 days after notification, travel if necessary for this purpose to any Pacific Island Party at no expense to that Party. (b) Forwarding and transmittal of vessel license application Except as provided in subsections (e), (f), and (g) of this section, the Secretary shall forward a vessel license application to the Secretary of State for transmittal to the Administrator whenever such application is in accordance with application procedures established by the Sec- retary, includes a complete application form as required by Annex II of the Treaty, and is ac- companied by the required license fee. (c) Fees and fee schedules (1) In the initial year of implementation, fees for the first 40 vessel licenses shall be at least $50,000 each, for any 10 vessel licenses in addi- tion to the first 40 shall be $60,000 each, and for vessel licenses in addition to the first 50 shall be in accordance with Annex II of the Treaty. (2) After such initial year, fees for vessel li- censes shall be paid in accordance with fee schedules established under Annex II of the Treaty and published by the Secretary. (d) Period of validity Licenses shall be valid for the licensing period specified by the Administrator. (e) Allocation system The Secretary may establish a system of allo- cating licenses in the event more applications are received than there are licenses available. (f) Minimum fees required to be received in ini- tial year of implementation for forwarding and transmittal of license applications For the initial year of implementation, license fees totaling at least $1,750,000 must be received by the Secretary before any license applications will be forwarded to the Secretary of State for transmittal to the Administrator. (g) Grounds for denial of forwarding of license application The Secretary, in consultation with the Sec- retary of State, may determine that a license application should not be forwarded to the Ad- ministrator for one of the following reasons: (1) where the application is not in accord- ance with the Treaty or the procedures estab- lished by the Secretary; (2) where the owner or charterer is the sub- ject of proceedings under the bankruptcy laws of the United States, unless reasonable finan- cial assurances have been provided to the Sec- retary; (3) where the owner or charterer has not es- tablished to the satisfaction of the Secretary that the fishing vessel is fully insured against all risks and liabilities normally provided in maritime liability insurance; (4) where the owner or charterer has not paid any penalty which has become final, assessed by the Secretary in accordance with this chap- ter. (h) Grandfathering of vessels documented before November 3, 1995 Notwithstanding the requirements of— (1) section 1 of the Act of August 26, 1983 (97 Stat. 587; 46 U.S.C. 12108); 1 (2) the general permit issued on December 1, 1980, to the American Tunaboat Association under section 1374(h)(1) of this title; and (3) sections 1374(h)(2) and 1416(a) of this title— 2 any vessel documented under the laws of the United States as of November 3, 1995, for which a license has been issued under subsection (a) may fish for tuna in the Treaty Area, including those waters subject to the jurisdiction of the United States in accordance with international law, subject to the provisions of the treaty 3 and this chapter, provided that no such vessel fish- ing in the Treaty Area intentionally deploys a purse seine net to encircle any dolphin or other marine mammal in the course of fishing under the provisions of the Treaty or this chapter. (Pub. L. 100–330, § 9, June 7, 1988, 102 Stat. 596; Pub. L. 104–43, title VIII, § 801, Nov. 3, 1995, 109 Stat. 395.) Editorial Notes REFERENCES IN TEXT Section 1 of the Act of August 26, 1983 (97 Stat. 587; 46 U.S.C. 12108), referred to in subsec. (h)(1), probably