
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 16USC1858]

 
                         TITLE 16--CONSERVATION
 
             CHAPTER 38--FISHERY CONSERVATION AND MANAGEMENT
 
           SUBCHAPTER IV--NATIONAL FISHERY MANAGEMENT PROGRAM
 
Sec. 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 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 penalty shall be assessed by the Secretary, or his designee, 
by written 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 respect to the 
violator, the degree of culpability, any history of prior offenses, and 
such other matters as justice may require. In assessing such penalty the 
Secretary 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.

(b) Review of civil penalty

    Any person against whom a civil penalty is assessed under subsection 
(a) of this section or against whom a permit sanction is imposed under 
subsection (g) of this section (other than a permit suspension for 
nonpayment of penalty or fine) may obtain review 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 
order. The Secretary shall promptly file in such court a certified copy 
of the record upon which such violation was found or such penalty 
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 substantial evidence, as provided in section 706(2) 
of title 5.

(c) Action upon failure to pay assessment

    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. In such action, the validity and 
appropriateness of the final order imposing the civil penalty shall not 
be subject to review.

(d) In rem jurisdiction

    A fishing vessel (including its fishing gear, furniture, 
appurtenances, stores, and cargo) used in the commission of an act 
prohibited by section 1857 of this title shall be liable in rem for any 
civil penalty assessed for such violation under this section and may be 
proceeded against in any district court of the United States having 
jurisdiction thereof. Such penalty shall constitute a maritime lien on 
such 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 or other action by Secretary

    The Secretary may compromise, modify, or remit, with or without 
conditions, any civil penalty which is subject to imposition or which 
has been imposed under this section.

(f) Subpenas

    For the purposes of conducting any hearing under this section, the 
Secretary may issue subpenas for the attendance and testimony of 
witnesses 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 subpena 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 United States and after 
notice to such person, shall have jurisdiction to issue an order 
requiring 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 thereof.

(g) Permit sanctions

    (1) In any case in which (A) a vessel has been used in the 
commission of an act prohibited under section 1857 of this title, (B) 
the owner or operator of a vessel or any other person who has been 
issued or has applied for a permit under this chapter has acted in 
violation of section 1857 of this title, (C) any amount in settlement of 
a civil forfeiture imposed on a vessel or other property, or 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 marine resource law enforced by the Secretary has not 
been paid and is overdue, or (D) any payment required for observer 
services 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, the 
Secretary may--
        (i) revoke any permit issued with respect to such vessel or 
    person, 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 appropriate;
        (iii) deny such permit; or
        (iv) impose additional conditions and restrictions on any permit 
    issued to or applied for by such vessel or person under this chapter 
    and, with respect to foreign fishing vessels, on the approved 
    application of the foreign nation involved and on any permit issued 
    under that application.

    (2) In imposing a sanction under this subsection, 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 vessel, by sale or otherwise, shall 
not extinguish any permit sanction that is in effect or is pending 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 existence of any permit 
sanction that will be in effect or pending with respect to the vessel at 
the time of the transfer.
    (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 reinstate 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 a prior opportunity for a hearing on the facts underlying the 
violation for which the sanction is imposed, either in conjunction with 
a civil penalty proceeding under this section or otherwise.

(Pub. L. 94-265, title III, Sec. 308, Apr. 13, 1976, 90 Stat. 356; Pub. 
L. 97-453, Sec. 10, Jan. 12, 1983, 96 Stat. 2491; Pub. L. 99-659, title 
I, Sec. 108, Nov. 14, 1986, 100 Stat. 3713; Pub. L. 101-627, title I, 
Sec. 114(a), Nov. 28, 1990, 104 Stat. 4454; Pub. L. 104-297, title I, 
Sec. 114(a)-(c), Oct. 11, 1996, 110 Stat. 3598, 3599.)


                               Amendments

    1996--Subsec. (a). Pub. L. 104-297, Sec. 114(a), struck out 
``ability to pay,'' after ``history of prior offenses,'' and inserted at 
end ``In assessing such penalty the Secretary 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, Sec. 114(b), amended first sentence 
generally. Prior to amendment, first sentence read as follows: ``Any 
person against whom a civil penalty 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 complaint by certified mail on the Secretary, the 
Attorney General and the appropriate United States Attorney.''
    Subsec. (g)(1). Pub. L. 104-297, Sec. 114(c), substituted ``(C) any 
amount in settlement of a civil forfeiture imposed on a vessel or other 
property, or 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 marine resource law enforced by the 
Secretary has not been paid and is overdue, or (D) any payment required 
for observer services 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 Secretary has not been paid and is overdue,''.
    1990--Pub. L. 101-627, Sec. 114(a)(1), inserted ``and permit 
sanctions'' after ``penalties'' in section catchline.
    Subsec. (a). Pub. L. 101-627, Sec. 114(a)(2), substituted 
``$100,000'' for ``$25,000''.
    Subsec. (g). Pub. L. 101-627, Sec. 114(a)(3), added subsec. (g).
    1986--Subsec. (b). Pub. L. 99-659, Sec. 108(1), amended first 
sentence generally. Prior to amendment, the sentence read as follows: 
``Any person against whom a civil penalty 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 simultaneously sending a copy 
of such notice by certified mail to the Secretary''.
    Subsecs. (d) to (f). Pub. L. 99-659, Sec. 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).


                             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.

                  Section Referred to in Other Sections

    This section is referred to in sections 971e, 1827, 1853, 3606, 
3637, 5103, 5106, 5107a, 5154, 5158, 5606 of this title; title 46 App. 
section 1273a.
