16 U.S.C. § 5507 — Civil penalties and permit sanctions

Page 2549 TITLE 16—CONSERVATION § 5507 (Pub. L. 104–43, title I, § 107, Nov. 3, 1995, 109 Stat. 372.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (e), was in the original ‘‘this Act’’, and was translated as reading ‘‘this title’’, meaning title I of Pub. L. 104–43, to reflect the probable intent of Congress. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 120 days after Nov. 3, 1995, see sec- tion 111 of Pub. L. 104–43, set out as a note under sec- tion 5501 of this title. TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. § 5507. Civil penalties and permit sanctions (a) Civil penalties (1) Any person who is found by the Secretary, after notice and opportunity for a hearing in ac- cordance with section 554 of title 5, to have com- mitted an act prohibited by section 5505 of this title shall be liable to the United States for a civil penalty. The amount of the civil penalty shall not exceed $100,000 for each violation. Each day of a continuing violation shall constitute a separate offense. The amount of such civil pen- alty shall be assessed by the Secretary by writ- ten notice. 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 re- spect to the violation, the degree of culpability, any history of prior offenses, and such other matters as justice may require. (2) The Secretary may compromise, modify, or remit, with or without conditions, any civil pen- alty that is subject to imposition or that has been imposed under this section. (b) Permit sanctions (1) In any case in which— (A) a vessel of the United States has been used in the commission of an act prohibited under section 5505 of this title; (B) the owner or operator of a vessel or any other person who has been issued or has ap- plied for a permit under section 5503 of this title has acted in violation of section 5505 of this title; or (C) any amount in settlement of a civil for- feiture imposed on a high seas fishing vessel or other property, or any civil penalty or crimi- nal fine imposed on a high seas fishing vessel or on an owner or operator of such a vessel or on any other person who has been issued or has applied for a permit under any fishery re- source statute enforced by the Secretary, has not been paid and is overdue, the Secretary may— (i) revoke any permit issued to or applied for by such vessel or person under this chap- ter, with or without prejudice to the issuance of subsequent permits; (ii) suspend such permit for a period of time considered by the Secretary to be ap- propriate; (iii) deny such permit; or (iv) impose additional conditions and re- strictions on such permit. (2) In imposing a sanction under this sub- section, the Secretary shall take into account— (A) the nature, circumstances, extent, and gravity of the prohibited acts for which the sanction is imposed; and (B) with respect to the violator, the degree of culpability, any history of prior offenses, and such other matters as justice may require. (3) Transfer of ownership of a high seas fishing vessel, by sale or otherwise, shall not extinguish any permit sanction that is in effect or is pend- ing at the time of transfer of ownership. Before executing the transfer of ownership of a vessel, by sale or otherwise, the owner shall disclose in writing to the prospective transferee the exist- ence of any permit sanction that will be in ef- fect or pending with respect to the vessel at the time of the transfer. The Secretary may waive or compromise a sanction in the case of a trans- fer pursuant to court order. (4) In the case of any permit that is suspended under this subsection for nonpayment of a civil penalty or criminal fine, the Secretary shall re- instate the permit upon payment of the penalty or fine and interest thereon at the prevailing rate. (5) No sanctions shall be imposed under this subsection unless there has been prior oppor- tunity for a hearing on the facts underlying the violation for which the sanction is imposed, ei- ther in conjunction with a civil penalty pro- ceeding under this section or otherwise. (c) Hearing 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 any person pursuant to this subsection, the district court of the United States for any dis- trict in which such person is found, resides, or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requir- ing such person to appear and give testimony before the Secretary 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 there- of. (d) Judicial review Any person against whom a civil penalty is as- sessed under subsection (a) or against whose ves- sel a permit sanction is imposed under sub- section (b) (other than a permit suspension for Page 2550 TITLE 16—CONSERVATION § 5508 nonpayment of penalty or fine) may obtain re- view thereof in the United States district court for the appropriate district by filing a complaint against the Secretary in such court within 30 days from the date of such penalty or sanction. The Secretary shall promptly file in such court a certified copy of the record upon which such penalty or sanction was imposed, as provided in section 2112 of title 28. The findings and order of the Secretary 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. (e) Collection (1) 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 matter shall be referred to the Attorney General, 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) A high seas fishing vessel (including its fishing gear, furniture, appurtenances, stores, and cargo) used in the commission of an act pro- hibited by section 5505 of this title shall be lia- ble in rem for any civil penalty assessed for such violation under subsection (a) and may be pro- ceeded against in any district court of the United States having jurisdiction thereof. Such penalty shall constitute a maritime lien on such vessel that may be recovered in an action in rem in the district court of the United States having jurisdiction over the vessel. (Pub. L. 104–43, title I, § 108, Nov. 3, 1995, 109 Stat. 373.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 120 days after Nov. 3, 1995, see sec- tion 111 of Pub. L. 104–43, set out as a note under sec- tion 5501 of this title. § 5508. Criminal offenses (a) Offenses A person is guilty of an offense if the person commits any act prohibited by paragraph (6), (7), (8), or (9) of section 5505 of this title. (b) Punishment Any offense described in subsection (a) is a class A misdemeanor punishable by a fine under title 18, or imprisonment for not more than one year, or both; except that if in the commission of any offense the person uses a dangerous weap- on, engages in conduct that causes bodily injury to any authorized officer, or places any such of- ficer in fear of imminent bodily injury, the of- fense is a felony punishable by a fine under title 18, or imprisonment for not more than 10 years, or both. (Pub. L. 104–43, title I, § 109, Nov. 3, 1995, 109 Stat. 375.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 120 days after Nov. 3, 1995, see sec- tion 111 of Pub. L. 104–43, set out as a note under sec- tion 5501 of this title. § 5509. Forfeitures (a) In general Any high seas fishing vessel (including its fishing gear, furniture, appurtenances, stores, and cargo) used, and any living marine resources (or the fair market value thereof) taken or re- tained, in any manner, in connection with or as a result of the commission of any act prohibited by section 5505 of this title (other than an act for which the issuance of a citation under sec- tion 5506 of this title is a sufficient sanction) shall be subject to forfeiture to the United States. All or part of such vessel may, and all such living marine resources (or the fair market value thereof) shall, be forfeited to the United States pursuant to a civil proceeding under this section. (b) Jurisdiction of district courts Any district court of the United States shall have jurisdiction, upon application of the Attor- ney General on behalf of the United States, to order any forfeiture authorized under subsection (a) and any action provided for under subsection (d). (c) Judgment If a judgment is entered for the United States in a civil forfeiture proceeding under this sec- tion, the Attorney General may seize any prop- erty or other interest declared forfeited to the United States, which has not previously been seized pursuant to this chapter or for which se- curity has not previously been obtained. The provisions of the customs laws relating to— (1) the seizure, forfeiture, and condemnation of property for violation of the customs law; (2) the disposition of such property or the proceeds from the sale thereof; and (3) the remission or mitigation of any such forfeiture; shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the pro- visions of this chapter, unless such provisions are inconsistent with the purposes, policy, and provisions of this chapter. (d) Procedure (1) Any officer authorized to serve any process in rem that is issued by a court under section 5506(b) of this title shall— (A) stay the execution of such process; or (B) discharge any living marine resources seized pursuant to such process; upon receipt of a satisfactory bond or other se- curity from any person claiming such property. Such bond or other security shall be conditioned upon such person delivering such property to the appropriate court upon order thereof, without any impairment of its value, or paying the mon- etary value of such property pursuant to an order of such court. Judgment shall be recover- able on such bond or other security against both the principal and any sureties in the event that