16 U.S.C. § 1857 — Prohibited acts

Page 2096 TITLE 16—CONSERVATION § 1857 1 So in original. respectively, set out as notes under section 1331 of Title 43, Public Lands. § 1857. Prohibited acts It is unlawful— (1) for any person— (A) to violate any provision of this chapter or any regulation or permit issued pursuant to this chapter; (B) to use any fishing vessel to engage in fishing after the revocation, or during the period of suspension, of an applicable permit issued pursuant to this chapter; (C) to violate any provision of, or regula- tion under, an applicable governing inter- national fishery agreement entered into pur- suant to section 1821(c) of this title; (D) to refuse to permit any officer author- ized to enforce the provisions of this chapter (as provided for in section 1861 of this title) to board a fishing vessel subject to such per- son’s control for purposes of conducting any search or inspection in connection with the enforcement of this chapter or any regula- tion, permit, or agreement referred to in subparagraph (A) or (C); (E) to forcibly assault, resist, oppose, im- pede, intimidate, or interfere with any such authorized officer in the conduct of any search or inspection described in subpara- graph (D); (F) to resist a lawful arrest for any act prohibited by this section; (G) to ship, transport, offer for sale, sell, purchase, import, export, or have custody, control, or possession of, any fish taken or retained in violation of this chapter or any regulation, permit, or agreement referred to in subparagraph (A) or (C); (H) to interfere with, delay, or prevent, by any means, the apprehension or arrest of an- other person, knowing that such other per- son has committed any act prohibited by this section; (I) to knowingly and willfully submit to a Council, the Secretary, or the Governor of a State false information (including, but not limited to, false information regarding the capacity and extent to which a United States fish processor, on an annual basis, will process a portion of the optimum yield of a fishery that will be harvested by fishing vessels of the United States) regarding any matter that the Council, Secretary, or Gov- ernor is considering in the course of car- rying out this chapter; (J) to ship, transport, offer for sale, sell, or purchase, in interstate or foreign commerce, any whole live lobster of the species Homarus americanus, that— (i) is smaller than the minimum posses- sion size in effect at the time under the American Lobster Fishery Management Plan, as implemented by regulations pub- lished in part 649 of title 50, Code of Fed- eral Regulations, or any successor to that plan implemented under this subchapter, or in the absence of any such plan, is smaller than the minimum possession size in effect at the time under a coastal fish- ery management plan for American lobster adopted by the Atlantic States Marine Fisheries Commission under the Atlantic Coastal Fisheries Cooperative Manage- ment Act (16 U.S.C. 5101 et seq.); (ii) is bearing eggs attached to its ab- dominal appendages; or (iii) bears evidence of the forcible re- moval of extruded eggs from its abdominal appendages; (K) to to 1 steal or attempt to steal or to negligently and without authorization re- move, damage, or tamper with— (i) fishing gear owned by another person, which is located in the exclusive economic zone, or (ii) fish contained in such fishing gear; (L) to forcibly assault, resist, oppose, im- pede, intimidate, sexually harass, bribe, or interfere with any observer on a vessel under this chapter, or any data collector employed by the National Marine Fisheries Service or under contract to any person to carry out responsibilities under this chapter; (M) to engage in large-scale driftnet fish- ing that is subject to the jurisdiction of the United States, including use of a fishing ves- sel of the United States to engage in such fishing beyond the exclusive economic zone of any nation, unless such large-scale driftnet fishing— (i) deploys, within the exclusive eco- nomic zone, a net with a total length of less than two and one-half kilometers and a mesh size of 14 inches or greater; and (ii) is conducted within 5 years of De- cember 29, 2022; (N) to strip pollock of its roe and discard the flesh of the pollock; (O) to knowingly and willfully fail to dis- close, or to falsely disclose, any financial in- terest as required under section 1852(j) of this title, or to knowingly vote on a Council decision in violation of section 1852(j)(7)(A) of this title; (P)(i) to remove any of the fins of a shark (including the tail) at sea; (ii) to have custody, control, or possession of any such fin aboard a fishing vessel unless it is naturally attached to the corresponding carcass; (iii) to transfer any such fin from one ves- sel to another vessel at sea, or to receive any such fin in such transfer, without the fin naturally attached to the corresponding car- cass; or (iv) to land any such fin that is not natu- rally attached to the corresponding carcass, or to land any shark carcass without such fins naturally attached; (Q) to import, export, transport, sell, re- ceive, acquire, or purchase in interstate or foreign commerce any fish taken, possessed, transported, or sold in violation of any for- eign law or regulation or any treaty or in contravention of any binding conservation measure adopted by an international agree- ment or organization to which the United States is a party; or Page 2097 TITLE 16—CONSERVATION § 1857 (R) to use any fishing vessel to engage in fishing in Federal or State waters, or on the high seas or in the waters of another coun- try, after the Secretary has made a payment to the owner of that fishing vessel under sec- tion 1861a(b)(2) of this title. For purposes of subparagraph (P), there shall be a rebuttable presumption that if any shark fin (including the tail) is found aboard a ves- sel, other than a fishing vessel, without being naturally attached to the corresponding car- cass, such fin was transferred in violation of subparagraph (P)(iii) or that if, after landing, the total weight of shark fins (including the tail) landed from any vessel exceeds five per- cent of the total weight of shark carcasses landed, such fins were taken, held, or landed in violation of subparagraph (P). In such sub- paragraph, the term ‘‘naturally attached’’, with respect to a shark fin, means attached to the corresponding shark carcass through some portion of uncut skin. (2) for any vessel other than a vessel of the United States, and for the owner or operator of any vessel other than a vessel of the United States, to engage— (A) in fishing within the boundaries of any State, except— (i) recreational fishing permitted under section 1821(i) of this title; (ii) fish processing permitted under sec- tion 1856(c) of this title; or (iii) transshipment at sea of fish or fish products within the boundaries of any State in accordance with a permit ap- proved under section 1824(d) of this title; (B) in fishing, except recreational fishing permitted under section 1821(i) of this title, within the exclusive economic zone, or for any anadromous species or Continental Shelf fishery resources beyond such zone, unless such fishing is authorized by, and conducted in accordance with, a valid and applicable permit issued pursuant to section 1824(b), (c), or (d) of this title; or (C) except as permitted under section 1856(c) of this title, in fish processing (as de- fined in paragraph (4)(A) of such section) within the internal waters of a State (as de- fined in paragraph (4)(B) of such section); (3) for any vessel of the United States, and for the owner or operator of any vessel of the United States, to transfer at sea directly or in- directly, or attempt to so transfer at sea, any United States harvested fish to any foreign fishing vessel, while such foreign vessel is within the exclusive economic zone or within the boundaries of any State except to the ex- tent that the foreign fishing vessel has been permitted under section 1824(d) of this title or section 1856(c) of this title to receive such fish; (4) for any fishing vessel other than a vessel of the United States to operate, and for the owner or operator of a fishing vessel other than a vessel of the United States to operate such vessel, in the exclusive economic zone or within the boundaries of any State, if— (A) all fishing gear on the vessel is not stored below deck or in an area where it is not normally used, and not readily avail- able, for fishing; or (B) all fishing gear on the vessel which is not so stored is not secured and covered so as to render it unusable for fishing; unless such vessel is authorized to engage in fishing in the area in which the vessel is oper- ating; and (5) for any vessel of the United States, and for the owner or operator of any vessel of the United States, to engage in fishing in the wa- ters of a foreign nation in a manner that vio- lates an international fishery agreement be- tween that nation and the United States that has been subject to Congressional oversight in the manner described in section 1823 of this title, or any regulations issued to implement such an agreement; except that the binding provisions of such agreement and imple- menting regulations shall have been published in the Federal Register prior to such viola- tion. (Pub. L. 94–265, title III, § 307, Apr. 13, 1976, 90 Stat. 355; Pub. L. 95–354, § 5(4), Aug. 28, 1978, 92 Stat. 521; Pub. L. 97–191, § 2, June 1, 1982, 96 Stat. 107; Pub. L. 97–453, § 15(b), Jan. 12, 1983, 96 Stat. 2492; Pub. L. 99–659, title I, §§ 101(c)(2), 107(a), Nov. 14, 1986, 100 Stat. 3707, 3713; Pub. L. 100–629, § 4, Nov. 7, 1988, 102 Stat. 3286; Pub. L. 101–224, § 8, Dec. 12, 1989, 103 Stat. 1907; Pub. L. 101–627, title I, § 113, Nov. 28, 1990, 104 Stat. 4453; Pub. L. 102–251, title III, § 301(h), Mar. 9, 1992, 106 Stat. 64; Pub. L. 104–297, title I, § 113, title IV, § 405(b)(1), Oct. 11, 1996, 110 Stat. 3597, 3621; Pub. L. 106–557, § 3, Dec. 21, 2000, 114 Stat. 2772; Pub. L. 109–479, title I, § 118, Jan. 12, 2007, 120 Stat. 3607; Pub. L. 111–348, title I, § 103(a), Jan. 4, 2011, 124 Stat. 3670; Pub. L. 114–81, title I, § 112, Nov. 5, 2015, 129 Stat. 659; Pub. L. 117–328, div. S, title I, § 105, Dec. 29, 2022, 136 Stat. 5260.) AMENDMENT OF SECTION Pub. L. 102–251, title III, §§ 301(h), 308, Mar. 9, 1992, 106 Stat. 64, 66, as amended by Pub. L. 104–297, title IV, § 405(b)(1), Oct. 11, 1996, 110 Stat. 3621, provided that, effective on the date on which the Agreement between the United States and the Union of Soviet Socialist Repub- lics on the Maritime Boundary, signed June 1, 1990, enters into force for the United States, with authority to prescribe implementing regu- lations effective Mar. 9, 1992, but with no such regulation to be effective until the date on which the Agreement enters into force for the United States, this section is amended: (1) in paragraph (1)(K), by inserting ‘‘or spe- cial areas’’ immediately after ‘‘exclusive eco- nomic zone’’; (2) in paragraph (2)(B), by inserting ‘‘or areas’’ immediately after ‘‘such zone’’; (3) in paragraph (3), by inserting ‘‘or special areas’’ immediately after ‘‘exclusive economic zone’’; and (4) in paragraph (4), by inserting ‘‘or special areas’’ immediately after ‘‘exclusive economic zone’’. Editorial Notes REFERENCES IN TEXT This chapter, referred to in par. (1), was in the origi- nal ‘‘this Act’’, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Page 2098 TITLE 16—CONSERVATION § 1857 Stat. 331, known as the Magnuson-Stevens Fishery Con- servation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables. The Atlantic Coastal Fisheries Cooperative Manage- ment Act, referred to in par. (1)(J)(i), is title VIII of Pub. L. 103–206, Dec. 20, 1993, 107 Stat. 2447, which is classified principally to chapter 71 (§ 5101 et seq.) of this title. For complete classification of title VIII to the Code, see Short Title note set out under section 5101 of this title and Tables. AMENDMENTS 2022—Par. (1)(M). Pub. L. 117–328 inserted before semi- colon at end ‘‘, unless such large-scale driftnet fish- ing— ‘‘(i) deploys, within the exclusive economic zone, a net with a total length of less than two and one-half kilometers and a mesh size of 14 inches or greater; and ‘‘(ii) is conducted within 5 years of December 29, 2022’’. 2015—Par. (1)(Q). Pub. L. 114–81 inserted before the semicolon ‘‘or any treaty or in contravention of any binding conservation measure adopted by an inter- national agreement or organization to which the United States is a party’’. 2011—Par. (1). Pub. L. 111–348, § 103(a)(2), substituted ‘‘For purposes of subparagraph (P), there shall be a re- buttable presumption that if any shark fin (including the tail) is found aboard a vessel, other than a fishing vessel, without being naturally attached to the cor- responding carcass, such fin was transferred in viola- tion of subparagraph (P)(iii) or that if, after landing, the total weight of shark fins (including the tail) land- ed from any vessel exceeds five percent of the total weight of shark carcasses landed, such fins were taken, held, or landed in violation of subparagraph (P). In such subparagraph, the term ‘naturally attached’, with re- spect to a shark fin, means attached to the cor- responding shark carcass through some portion of uncut skin.’’ for ‘‘For purposes of subparagraph (P) there is a rebuttable presumption that any shark fins landed from a fishing vessel or found on board a fishing vessel were taken, held, or landed in violation of sub- paragraph (P) if the total weight of shark fins landed or found on board exceeds 5 percent of the total weight of shark carcasses landed or found on board.’’ in con- cluding provisions. Par. (1)(P). Pub. L. 111–348, § 103(a)(1), amended sub- par. (P) generally. Prior to amendment, subpar. (P) read as follows: ‘‘(i) to remove any of the fins of a shark (including the tail) and discard the carcass of the shark at sea; ‘‘(ii) to have custody, control, or possession of any such fin aboard a fishing vessel without the cor- responding carcass; or ‘‘(iii) to land any such fin without the corresponding carcass;’’. 2007—Par. (1)(Q), (R). Pub. L. 109–479 added subpars. (Q) and (R). 2000—Par. (1). Pub. L. 106–557 added subpar. (P) and concluding provisions. 1996—Par. (1)(J)(i). Pub. L. 104–297, § 113(a), sub- stituted ‘‘plan implemented’’ for ‘‘plan, implemented’’ and inserted before semicolon at end ‘‘, or in the ab- sence of any such plan, is smaller than the minimum possession size in effect at the time under a coastal fishery management plan for American lobster adopted by the Atlantic States Marine Fisheries Commission under the Atlantic Coastal Fisheries Cooperative Man- agement Act (16 U.S.C. 5101 et seq.)’’. Par. (1)(K). Pub. L. 104–297, § 113(b)(2), substituted ‘‘gear;’’ for ‘‘gear,’’ at end of cl. (ii) and struck out con- cluding provisions which read as follows: ‘‘or to at- tempt to do so;’’. Pub. L. 104–297, § 113(b)(1), which directed substitution of ‘‘to steal or attempt to steal or to negligently and without authorization’’ for ‘‘knowingly steal or with- out authorization, to’’, was executed by making the substitution for ‘‘knowingly steal, or without author- ization, to’’ to reflect the probable intent of Congress. Par. (1)(L). Pub. L. 104–297, § 113(c), amended subpar. (L) generally. Prior to amendment, subpar. (L) read as follows: ‘‘to forcibly assault, resist, oppose, impede, in- timidate, or interfere with any observer on a vessel under this chapter;’’. Par. (1)(O). Pub. L. 104–297, § 113(d), added subpar. (O). Par. (2)(A). Pub. L. 104–297, § 113(e), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: ‘‘in fishing within the boundaries of any State, except recreational fishing permitted under section 1821(j) of this title;’’. Par. (2)(B). Pub. L. 104–297, § 113(f), substituted ‘‘1821(i)’’ for ‘‘1821(j)’’ and ‘‘1824(b), (c), or (d)’’ for ‘‘1824(b) or (c)’’. Par. (3). Pub. L. 104–297, § 113(g), amended par. (3) gen- erally. Prior to amendment, par. (3) read as follows: ‘‘for any vessel of the United States, and for the owner or operator of any vessel of the United States, to trans- fer directly or indirectly, or attempt to so transfer, any United States harvested fish to any foreign fishing ves- sel, while such foreign vessel is within the exclusive economic zone, unless the foreign fishing vessel has been issued a permit under section 1824 of this title which authorizes the receipt by such vessel of United States harvested fish of the species concerned;’’. Par. (4). Pub. L. 104–297, § 113(h), inserted ‘‘or within the boundaries of any State’’ after ‘‘zone’’ in introduc- tory provisions. 1990—Par. (1)(K) to (N). Pub. L. 101–627, § 113(a), added subpars. (K) to (N). Par. (5). Pub. L. 101–627, § 113(b), added par. (5). 1989—Par. (1)(J). Pub. L. 101–224 added subpar. (J). 1988—Par. (4). Pub. L. 100–629 added par. (4). 1986—Par. (1)(I). Pub. L. 99–659, § 107(a), added subpar. (I). Pars. (2)(B), (3). Pub. L. 99–659, § 101(c)(2), substituted ‘‘exclusive economic zone’’ for ‘‘fishery conservation zone’’. 1983—Par. (2)(A). Pub. L. 97–453, § 15(b)(A), substituted ‘‘in fishing within the boundaries of any State, except recreational fishing permitted under section 1821(j) of this title’’ for ‘‘in fishing within the boundaries of any State’’. Par. (2)(B). Pub. L. 97–453, § 15(b)(B), inserted ‘‘, except recreational fishing permitted under section 1821(j) of this title,’’ after ‘‘in fishing’’. 1982—Par. (2). Pub. L. 97–191, § 2(1), struck out ‘‘in fishing’’ in provisions preceding subpar. (A). Par. (2)(A). Pub. L. 97–191, § 2(2), inserted ‘‘in fishing’’ at beginning and struck out ‘‘or’’ at end. Par. (2)(B). Pub. L. 97–191, § 2(3), inserted ‘‘in fishing’’ at beginning and substituted ‘‘or’’ for ‘‘and’’ at end. Par. (2)(C). Pub. L. 97–191, § 2(4), added subpar. (C). 1978—Par. (3). Pub. L. 95–354 added par. (3). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1992 AMENDMENT Amendment by Pub. L. 102–251 effective on date on which Agreement between United States and Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until date on which Agreement enters into force for United States, see section 308 of Pub. L. 102–251, set out as a note under section 773 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97–191 effective June 1, 1982, see section 3 of Pub. L. 97–191, set out as a note under section 1856 of this title. EFFECTIVE DATE Pub. L. 94–265, title III, § 312, Apr. 13, 1976, 90 Stat. 359, provided that this section and sections 1858 to 1861 of Page 2099 TITLE 16—CONSERVATION § 1858 this title were to take effect Mar. 1, 1977, prior to the general amendment of section 312 by Pub. L. 104–297, title I, § 116(a), Oct. 11, 1996, 110 Stat. 3600. See section 1861a of this title. SAVINGS CLAUSE Pub. L. 111–348, title I, § 103(b), Jan. 4, 2011, 124 Stat. 3670, provided that: ‘‘(1) IN GENERAL.—The amendments made by sub- section (a) [amending this section] do not apply to an individual engaged in commercial fishing for smooth dogfish (Mustelus canis) in that area of the waters of the United States located shoreward of a line drawn in such a manner that each point on it is 50 nautical miles from the baseline of a State from which the territorial sea is measured, if the individual holds a valid State commercial fishing license, unless the total weight of smooth dogfish fins landed or found on board a vessel to which this subsection applies exceeds 12 percent of the total weight of smooth dogfish carcasses landed or found on board. ‘‘(2) DEFINITIONS.—In this subsection: ‘‘(A) COMMERCIAL FISHING.—The term ‘commercial fishing’ has the meaning given that term in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802). ‘‘(B) STATE.—The term ‘State’ has the meaning given that term in section 803 of Public Law 103–206 (16 U.S.C. 5102).’’ CONSTRUCTION Nothing in section 103 of Pub. L. 111–348 (amending this section and enacting provisions set out as a note above) to be construed as affecting, altering, or dimin- ishing the authority of the Secretary of Commerce to establish such conservation and management measures as the Secretary considers necessary and appropriate under sections 1852(a)(3) and 1854(g) of this title, see section 104 of Pub. L. 111–348, set out as a note under section 1826i of this title. PROHIBITION ON SALE OF SHARK FINS Pub. L. 117–263, div. E, title LIX, § 5946(b), Dec. 23, 2022, 136 Stat. 3475, provided that: ‘‘(1) PROHIBITION.—Except as provided in paragraph (3), no person shall possess, acquire, receive, transport, offer for sale, sell, or purchase a shark fin or a product containing a shark fin. ‘‘(2) PENALTY.—A violation of paragraph (1) shall be treated as an act prohibited by section 307 of the Mag- nuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1857) and shall be penalized pursuant to section 308 of that Act (16 U.S.C. 1858). ‘‘(3) EXCEPTIONS.—A person may possess a shark fin that was taken lawfully pursuant to a Federal, State, or territorial license or permit to take or land sharks if the shark fin was separated after the first point of landing in a manner consistent with the license or per- mit and is— ‘‘(A) destroyed or disposed of immediately upon separation from the carcass; ‘‘(B) used for noncommercial subsistence purposes in accordance with Federal, State, or territorial law; or ‘‘(C) used solely for display or research purposes by a museum, college, or university pursuant to a Fed- eral, State, or territorial permit to conduct non- commercial scientific research. ‘‘(4) DOGFISH EXEMPTION.— ‘‘(A) IN GENERAL.—It shall not be a violation of paragraph (1) for a person to possess, acquire, receive, transport, offer for sale, sell, or purchase a shark fin of a smooth dogfish (Mustelus canis) or a spiny dogfish (Squalus acanthias). ‘‘(B) REPORT.— ‘‘(i) IN GENERAL.—Not later than January 1, 2027, the Secretary of Commerce shall review the exemp- tion provided by subparagraph (A) and submit to Congress a report regarding such exemption that includes a recommendation to continue or termi- nate the exemption. ‘‘(ii) FACTORS.—In carrying out clause (i), the Secretary of Commerce shall analyze factors in- cluding— ‘‘(I) the impact of continuation and termination of the exemption on the economic viability of dogfish fisheries; ‘‘(II) the impact of continuation and termi- nation of the exemption on ocean ecosystems; ‘‘(III) the impact of the exemption on the en- forcement of the prohibition described in para- graph (1); and ‘‘(IV) the impact of the exemption on shark conservation. ‘‘(5) ENFORCEMENT.—This subsection, and any regula- tions issued pursuant thereto, shall be enforced by the Secretary of Commerce, who may use by agreement, with or without reimbursement, the personnel, serv- ices, equipment, and facilities of another Federal agen- cy or of a State agency or Indian Tribe for the purpose of enforcing this subsection. ‘‘(6) RULE OF CONSTRUCTION.—Nothing in this sub- section may be construed to preclude, deny, or limit any right of a State or territory to adopt or enforce any regulation or standard that is more stringent than a regulation or standard in effect under this subsection. ‘‘(7) SEVERABILITY.—If any provision of this sub- section, or the application thereof to any person or cir- cumstance, is held invalid, the validity of the remain- der of the subsection and of the application of any such provision to other persons and circumstances shall not be affected thereby. ‘‘(8) SHARK FIN DEFINED.—In this subsection, the term ‘shark fin’ means the unprocessed, dried, or otherwise processed detached fin or tail of a shark.’’ § 1858. Civil penalties and permit sanctions (a) Assessment of penalty 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 1857 or section 1870 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 viola- tion shall constitute a separate offense. The amount of such civil penalty shall be assessed by the Secretary, or his designee, by written no- tice. In determining the amount of such penalty, the Secretary shall take into account the na- ture, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any his- tory of prior offenses, and such other matters as justice may require. In assessing such penalty the Secretary may also consider any informa- tion 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. (b) Review of civil penalty Any person against whom a civil penalty is as- sessed under subsection (a) or against whom a permit sanction is imposed under subsection (g) (other than a permit suspension for nonpayment of penalty or fine) may obtain review thereof in the United States district court for the appro- priate district by filing a complaint against the Secretary in such court within 30 days from 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