16 U.S.C. § 1859 — Criminal offenses

Page 2101 TITLE 16—CONSERVATION § 1859 Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (g)(1), was in the original ‘‘this Act’’, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, known as the Magnuson-Stevens Fish- ery Conservation and Management Act, which is classi- fied principally to this chapter. For complete classi- fication of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables. AMENDMENTS 2021—Subsec. (a). Pub. L. 116–340, § 3(e)(2), struck out ‘‘or section 1870’’ after ‘‘section 1857’’. Pub. L. 116–340, § 3(b), inserted ‘‘or section 1870’’ after ‘‘section 1857’’. 1996—Subsec. (a). Pub. L. 104–297, § 114(a), struck out ‘‘ability to pay,’’ after ‘‘history of prior offenses,’’ and inserted at end ‘‘In assessing such penalty the Sec- retary may also consider any information 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.’’ Subsec. (b). Pub. L. 104–297, § 114(b), amended first sentence generally. Prior to amendment, first sentence read as follows: ‘‘Any person against whom a civil pen- alty is assessed under subsection (a) of this section may obtain review thereof in the United States district court for the appropriate district by filing a complaint in such court within 30 days from the date of such order and by simultaneously serving a copy of such com- plaint by certified mail on the Secretary, the Attorney General and the appropriate United States Attorney.’’ Subsec. (g)(1). Pub. L. 104–297, § 114(c), substituted ‘‘(C) any amount in settlement of a civil forfeiture im- posed on a vessel or other property, or any civil penalty or criminal fine imposed on a vessel or owner or oper- ator of a vessel or any other person who has been issued or has applied for a permit under any marine resource law enforced by the Secretary has not been paid and is overdue, or (D) any payment required for observer serv- ices provided to or contracted by an owner or operator who has been issued a permit or applied for a permit under any marine resource law administered by the Secretary has not been paid and is overdue,’’ for ‘‘or (C) any civil penalty or criminal fine imposed on a vessel or owner or operator of a vessel or any other person who has been issued or has applied for a permit under any fishery resource law statute enforced by the Sec- retary has not been paid and is overdue,’’. 1990—Pub. L. 101–627, § 114(a)(1), inserted ‘‘and permit sanctions’’ after ‘‘penalties’’ in section catchline. Subsec. (a). Pub. L. 101–627, § 114(a)(2), substituted ‘‘$100,000’’ for ‘‘$25,000’’. Subsec. (g). Pub. L. 101–627, § 114(a)(3), added subsec. (g). 1986—Subsec. (b). Pub. L. 99–659, § 108(1), amended first sentence generally. Prior to amendment, the sentence read as follows: ‘‘Any person against whom a civil pen- alty is assessed under subsection (a) of this section may obtain review thereof in the appropriate 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 si- multaneously sending a copy of such notice by certified mail to the Secretary’’. Subsecs. (d) to (f). Pub. L. 99–659, § 108(2), (3), added subsec. (d) and redesignated former subsecs. (d) and (e) as (e) and (f), respectively. 1983—Subsec. (e). Pub. L. 97–453 added subsec. (e). Statutory Notes and Related Subsidiaries EFFECTIVE AND TERMINATION DATES OF 2021 AMENDMENT Pub. L. 116–340, § 3(c), Jan. 13, 2021, 134 Stat. 5129, pro- vided that: ‘‘The amendments made by this Act [enact- ing section 1870 of this title and amending this section] shall take effect 1 year after the date of the enactment of this Act [Jan. 13, 2021].’’ Pub. L. 116–340, § 3(e), Jan. 13, 2021, 134 Stat. 5129, pro- vided in part that the amendment made by section 3(e)(2) is effective five years after Jan. 13, 2021. EFFECTIVE DATE Section effective Mar. 1, 1977, see section 312 of Pub. L. 94–265, formerly set out as a note under section 1857 of this title. § 1859. Criminal offenses (a) Offenses A person is guilty of an offense if he commits any act prohibited by— (1) section 1857(1)(D), (E), (F), (H), (I), or (L) of this title; or (2) section 1857(2) of this title. (b) Punishment Any offense described in subsection (a)(1) is punishable by a fine of not more than $100,000, or imprisonment for not more than 6 months, or both; except that if in the commission of any such offense the person uses a dangerous weap- on, engages in conduct that causes bodily injury to any observer described in section 1857(1)(L) of this title or any officer authorized to enforce the provisions of this chapter (as provided for in section 1861 of this title), or places any such ob- server or officer in fear of imminent bodily in- jury, the offense is punishable by a fine of not more than $200,000, or imprisonment for not more than 10 years, or both. Any offense de- scribed in subsection (a)(2) is punishable by a fine of not more than $200,000. (c) Jurisdiction There is Federal jurisdiction over any offense described in this section. (Pub. L. 94–265, title III, § 309, Apr. 13, 1976, 90 Stat. 357; Pub. L. 97–453, § 11(a), Jan. 12, 1983, 96 Stat. 2491; Pub. L. 99–659, title I, § 107(b), Nov. 14, 1986, 100 Stat. 3713; Pub. L. 100–66, § 2, July 10, 1987, 101 Stat. 384; Pub. L. 101–627, title I, § 115, Nov. 28, 1990, 104 Stat. 4455.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (b), was in the original ‘‘this Act’’, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, known as the Magnuson-Stevens Fish- ery Conservation and Management Act, which is classi- fied principally to this chapter. For complete classi- fication of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables. AMENDMENTS 1990—Subsec. (a)(1). Pub. L. 101–627, § 115(a), amended par. (1) generally, substituting ‘‘(I), or (L)’’ for ‘‘or (I)’’. Subsec. (b). Pub. L. 101–627, § 115(b), substituted ‘‘$100,000’’ for ‘‘$50,000’’, substituted ‘‘$200,000’’ for ‘‘$100,000’’ in two places, and inserted ‘‘any observer de- scribed in section 1857(1)(L) of this title or’’ after ‘‘in- jury to’’ and ‘‘observer or’’ before ‘‘officer in fear’’. 1987—Subsec. (a)(1). Pub. L. 100–66 substituted ‘‘(I)’’ for ‘‘(J)’’. 1986—Subsec. (a)(1). Pub. L. 99–659 substituted ‘‘(H), or (J)’’ for ‘‘or (H)’’. 1983—Subsec. (b). Pub. L. 97–453 struck out ‘‘, or im- prisonment for not more than 1 year, or both’’ after ‘‘subsection (a)(2) is punishable by a fine of not more than $100,000’’. Page 2102 TITLE 16—CONSERVATION § 1860 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1983 AMENDMENT Pub. L. 97–453, § 11(b), Jan. 12, 1983, 96 Stat. 2491, pro- vided that: ‘‘The amendment made by subsection (a) [amending this section] applies with respect to offenses committed under section 309 [this section] on or after the date of the enactment of this Act [Jan. 12, 1983].’’ EFFECTIVE DATE Section effective Mar. 1, 1977, see section 312 of Pub. L. 94–265, formerly set out as a note under section 1857 of this title. § 1860. Civil forfeitures (a) In general Any fishing vessel (including its fishing gear, furniture, appurtenances, stores, and cargo) used, and any fish (or the fair market value thereof) taken or retained, in any manner, in connection with or as a result of the commission of any act prohibited by section 1857 of this title (other than any act for which the issuance of a citation under section 1861(c) of this title is suf- ficient sanction) shall be subject to forfeiture to the United States. All or part of such vessel may, and all such fish (or the fair market value thereof) shall, be forfeited to the United States pursuant to a civil proceeding under this sec- tion. (b) Jurisdiction of district courts Any district court of the United States which has jurisdiction under section 1861(d) of this title shall have jurisdiction, upon application by the Attorney 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 under subsection (d). 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. The duties and pow- ers imposed upon the Commissioner of U.S. Cus- toms and Border Protection or other persons under such provisions shall, with respect to this chapter, be performed by officers or other per- sons designated for such purpose by the Sec- retary. (d) Procedure (1) Any officer authorized to serve any process in rem which is issued by a court having juris- diction under section 1861(d) shall— (A) stay the execution of such process; or (B) discharge any fish seized pursuant to such process; upon the receipt of a satisfactory bond or other security from any person claiming such prop- erty. Such bond or other security shall be condi- tioned upon such person (i) delivering such prop- erty to the appropriate court upon order thereof, without any impairment of its value, or (ii) pay- ing the monetary value of such property pursu- ant to an order of such court. Judgment shall be recoverable on such bond or other security against both the principal and any sureties in the event that any condition thereof is breached, as determined by such court. Nothing in this paragraph may be construed to require the Secretary, except in the Secretary’s discre- tion or pursuant to the order of a court under section 1861(d) of this title, to release on bond any seized fish or other property or the proceeds from the sale thereof. (2) Any fish seized pursuant to this chapter may be sold, subject to the approval and direc- tion of the appropriate court, for not less than the fair market value thereof. The proceeds of any such sale shall be deposited with such court pending the disposition of the matter involved. (e) Rebuttable presumptions (1) For purposes of this section, it shall be a rebuttable presumption that all fish found on board a fishing vessel which is seized in connec- tion with an act prohibited by section 1857 of this title were taken or retained in violation of this chapter. (2) For purposes of this chapter, it shall be a rebuttable presumption that any fish of a spe- cies which spawns in fresh or estuarine waters and migrates to ocean waters that is found on board a vessel is of United States origin if the vessel is within the migratory range of the spe- cies during that part of the year to which the migratory range applies. (3) For purposes of this chapter, it shall be a rebuttable presumption that any vessel that is shoreward of the outer boundary of the exclu- sive economic zone of the United States or be- yond the exclusive economic zone of any nation, and that has gear on board that is capable of use for large-scale driftnet fishing, is engaged in such fishing. (Pub. L. 94–265, title III, § 310, Apr. 13, 1976, 90 Stat. 357; Pub. L. 97–453, § 12, Jan. 12, 1983, 96 Stat. 2491; Pub. L. 99–659, title I, § 109(a), Nov. 14, 1986, 100 Stat. 3714; Pub. L. 101–627, title I, § 116, Nov. 28, 1990, 104 Stat. 4456; Pub. L. 104–297, title I, § 114(d), Oct. 11, 1996, 110 Stat. 3599; Pub. L. 114–125, title VIII, § 802(d)(2), Feb. 24, 2016, 130 Stat. 210.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (c), (d)(2), and (e), was in the original ‘‘this Act’’, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, known as the Magnuson-Ste- vens Fishery Conservation 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. AMENDMENTS 1996—Subsec. (e)(3). Pub. L. 104–297 added par. (3).