16 U.S.C. § 2438 — Criminal offenses

Page 2189 TITLE 16—CONSERVATION § 2438 1 So in original. The comma probably should not appear. 2 So in original. Probably should be preceded by ‘‘the’’. of the department in which the Coast Guard is operating, and the heads of other appropriate departments or agencies of the United States, shall promulgate such regulations as are nec- essary and appropriate to implement the provi- sions of this chapter. (b) Regulations to implement conservation meas- ures (1) In general Notwithstanding subsections (b), (c), and (d) of section 553 of title 5, the Secretary of Com- merce may publish in the Federal Register a final regulation to implement any conserva- tion measure for which the Secretary of State notifies the Commission under section 2434(a)(1) of this title— (A) that has been in effect for 12 months or less; (B) that is adopted by the Commission; and (C) with respect to which the Secretary of State,1 does not notify Commission 2 in ac- cordance with section 2434(a)(1) of this title within the time period allotted for objec- tions under Article IX of the Convention. (2) Entering into force Upon publication of such regulation in the Federal Register, such conservation measure shall enter into force with respect to the United States. (Pub. L. 98–623, title III, § 307, Nov. 8, 1984, 98 Stat. 3401; Pub. L. 114–81, title I, § 106(2), Nov. 5, 2015, 129 Stat. 658.) Editorial Notes AMENDMENTS 2015—Pub. L. 114–81 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b). Statutory Notes and Related Subsidiaries 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. § 2437. Civil penalties (a) In general Any person who commits an act that is unlaw- ful under section 2435 of this title shall be liable to the United States for a civil penalty, and may be subject to a permit sanction, under section 1858 of this title. (b) Hearings Hearings for the assessment of civil penalties under subsection (a) shall be conducted in ac- cordance with section 554 of title 5. For the pur- poses of conducting any such hearing, the Sec- retary of Commerce may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and docu- ments, and may administer oaths. Witnesses summoned shall be paid the same fees and mile- age that are paid to witnesses in the courts of the United States. In case of contumacy or re- fusal to obey a subpoena served upon any person pursuant to this subsection, the district court of the United States for any district in which such person is found, resides, or transacts business, upon application by the Attorney General of 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 of Commerce or to appear and produce documents before the Secretary of Commerce, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof. (c) Review of civil penalty Any person against whom a civil penalty is as- sessed under subsection (a) of this section may obtain review thereof in the appropriate district 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 Secretary of Commerce, the Attorney General, and the appropriate United States Attorney. The Secretary of Commerce shall promptly refer the matter to the Attorney General of the United States, who shall file in such court a cer- tified copy of the record upon which the viola- tion was found or such penalty imposed, as pro- vided in section 2112 of title 28. The court shall set aside the findings and order of the Secretary if the findings and order are found to be unsup- ported by substantial evidence, as provided in section 706(2)(E) of title 5. (d) Recovery of civil penalties The Attorney General of the United States may seek to recover in any appropriate district court of the United States (1) any civil penalty imposed under this section that has become a final and unappealable order and has been re- ferred to the Attorney General by the Secretary of Commerce or (2) any final judgment rendered under this section in favor of the United States by an appropriate Court. (e) Penalties under other laws The assessment of a civil penalty under sub- section (a) for any act shall not be deemed to preclude the assessment of a civil penalty for such act under any other law. (Pub. L. 98–623, title III, § 308, Nov. 8, 1984, 98 Stat. 3401; Pub. L. 114–81, title I, § 101(a)(2), Nov. 5, 2015, 129 Stat. 653.) Editorial Notes AMENDMENTS 2015—Pub. L. 114–81 amended subsec. (a) generally. Prior to amendment, subsec. (a) related to assessment of penalties. § 2438. Criminal offenses (a) Offenses A person is guilty of an offense if that person commits any act prohibited by paragraph (4), (5), (6), or (7) of section 2435 of this title. Page 2190 TITLE 16—CONSERVATION § 2439 1 So in original. Probably should be ‘‘or’’. (b) Punishment Any offense described in subsection (a) is pun- ishable by a fine of $50,000, or imprisonment for not more than ten years, or both. (c) Offenses under other laws A conviction under subsection (a) for any act shall not be deemed to preclude a conviction for such act under any other law. (Pub. L. 98–623, title III, § 309, Nov. 8, 1984, 98 Stat. 3403.) § 2439. Enforcement (a) Responsibility The provisions of this chapter shall be en- forced by the Secretary of Commerce and the Secretary of the department in which the Coast Guard is operating. Such Secretaries may utilize by agreement, on a reimbursable basis or other- wise, the personnel, services, and facilities of any other department or agency of the United States in the performance of such duties. (b) Powers of authorized officers and employees Any officer or employee of the United States who is authorized (by the Secretary of Com- merce, the Secretary of the department in which the Coast Guard is operating, or the head of any department or agency of the United States which has entered into an agreement with either Secretary under subsection (a)) to enforce the provisions of this chapter and of any regulation promulgated under this chapter may, in enforc- ing such provisions— (1) secure, execute, and serve any order, war- rant, subpoena, or other process, which is issued under the authority of the United States; (2) search without warrant any person, place, vehicle or aircraft subject to the juris- diction of the United States where there are reasonable grounds to believe that a person has committed or is attempting to commit an act prohibited by section 2435 of this title; (3) with or without a warrant board and search or inspect any vessel of the United States or vessel subject to the jurisdiction of the United States; (4) seize without warrant— (A) any evidentiary item where there are reasonable grounds to believe that a person has committed or is attempting to commit an act prohibited by section 2435 of this title, (B) any Antarctic marine living resources (or part of 1 product thereof) with respect to which such an act is committed, (C) any vessel of the United States (includ- ing its gear, furniture, appurtenances, stores, and cargo), any vessel subject to the jurisdiction of the United States (including its gear, furniture, appurtenances, stores, and cargo), and any vehicle, aircraft, or other means of transportation subject to the jurisdiction of the United States used in connection with such an act, and (D) any guns, traps, nets, or equipment used in connection with such an act; (5) offer and pay rewards for services or in- formation which may lead to the apprehension of persons violating such provisions; (6) make inquiries, and administer to, or take from, any person an oath, affirmation, or affidavit, concerning any matter which is re- lated to the enforcement of such provisions; (7) in coordination with the Secretary of the Treasury, detain for inspection and inspect any package, crate, or other container, includ- ing its contents, and all accompanying docu- ments, upon importation into, or exportation from, the United States; (8) make an arrest with or without a warrant with respect to any act prohibited by para- graph (4), (5), (6), or (7) of section 2435 of this title if such officer or employee has reasonable grounds to believe that the person to be ar- rested is committing such act in his or her presence or view or has committed such act; (9) exercise enforcement powers conferred on such officer or employee under a system of ob- servation and inspection, or interim arrange- ments pending the establishment of such a system, which the Secretary of State has agreed to on behalf of the United States pursu- ant to section 2434(b) of this title; and (10) exercise any other authority which such officer or employee is permitted by law to ex- ercise. (c) Seizure Subject to the succeeding provisions of this subsection, any property or item seized pursuant to subsection (b) shall be held by any officer or employee of the United States, who is author- ized by the Secretary of Commerce or the Sec- retary of the department in which the Coast Guard is operating, pending the disposition of civil or criminal proceedings concerning the vio- lation relating to the property or item, or the institution of an action in rem for the forfeiture of such property or item. Such authorized offi- cer or employee may, upon the order of a court of competent jurisdiction, either release such seized property or item to the wild or destroy such property or item, when the cost of mainte- nance of the property or item pending the dis- position of the case is greater than the legiti- mate market value of the property or item. Such authorized officer or employee and all offi- cers or employees acting by or under his or her direction shall be indemnified from any pen- alties or actions for damages for so releasing or destroying such property or item. Such author- ized officer or employee may, in lieu of holding such property or item, permit the owner or con- signee thereof to post a bond or other satisfac- tory surety. (d) Forfeiture (1) Any Antarctic marine living resource (or part or product thereof) with respect to which an act prohibited by section 2435 of this title is committed, any vessel of the United States (in- cluding its gear, furniture, appurtenances, stoves, and cargo), vessel subject to the jurisdic- tion of the United States (including its gear, furniture, appurtenances, stoves, and cargo), or vessel, vehicle, or aircraft or other means of transportation subject to the jurisdiction of the United States, which is used in connection with