16 U.S.C. § 1540 : US Code - Section 1540: Penalties and enforcement

Search 16 U.S.C. § 1540 : US Code - Section 1540: Penalties and enforcement

    (a) Civil penalties
      (1) Any person who knowingly violates, and any person engaged in
    business as an importer or exporter of fish, wildlife, or plants
    who violates, any provision of this chapter, or any provision of
    any permit or certificate issued hereunder, or of any regulation
    issued in order to implement subsection (a)(1)(A), (B), (C), (D),
    (E), or (F), (a)(2)(A), (B), (C), or (D), (c), (d) (other than
    regulation relating to recordkeeping or filing of reports), (f) or
    (g) of section 1538 of this title, may be assessed a civil penalty
    by the Secretary of not more than $25,000 for each violation. Any
    person who knowingly violates, and any person engaged in business
    as an importer or exporter of fish, wildlife, or plants who
    violates, any provision of any other regulation issued under this
    chapter may be assessed a civil penalty by the Secretary of not
    more than $12,000 for each such violation. Any person who otherwise
    violates any provision of this chapter, or any regulation, permit,
    or certificate issued hereunder, may be assessed a civil penalty by
    the Secretary of not more than $500 for each such violation. No
    penalty may be assessed under this subsection unless such person is
    given notice and opportunity for a hearing with respect to such
    violation. Each violation shall be a separate offense. Any such
    civil penalty may be remitted or mitigated by the Secretary. Upon
    any failure to pay a penalty assessed under this subsection, the
    Secretary may request the Attorney General to institute a civil
    action in a district court of the United States for any district in
    which such person is found, resides, or transacts business to
    collect the penalty and such court shall have jurisdiction to hear
    and decide any such action. The court shall hear such action on the
    record made before the Secretary and shall sustain his action if it
    is supported by substantial evidence on the record considered as a
    whole.
      (2) Hearings held during proceedings for the assessment of civil
    penalties authorized by paragraph (1) of this subsection shall be
    conducted in accordance with section 554 of title 5. The Secretary
    may issue subpenas for the attendance and testimony of witnesses
    and the production of relevant papers, books, and documents, and
    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 contumacy or refusal to obey a subpena served
    upon any person pursuant to this paragraph, the district court of
    the United States for any district in which such person is found or
    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.
      (3) Notwithstanding any other provision of this chapter, no civil
    penalty shall be imposed if it can be shown by a preponderance of
    the evidence that the defendant committed an act based on a good
    faith belief that he was acting to protect himself or herself, a
    member of his or her family, or any other individual from bodily
    harm, from any endangered or threatened species.
    (b) Criminal violations
      (1) Any person who knowingly violates any provision of this
    chapter, of any permit or certificate issued hereunder, or of any
    regulation issued in order to implement subsection (a)(1)(A), (B),
    (C), (D), (E), or (F), (a)(2)(A), (B), (C), or (D), (c), (d) (other
    than a regulation relating to recordkeeping, or filing of reports),
    (f), or (g) of section 1538 of this title shall, upon conviction,
    be fined not more than $50,000 or imprisoned for not more than one
    year, or both. Any person who knowingly violates any provision of
    any other regulation issued under this chapter shall, upon
    conviction, be fined not more than $25,000 or imprisoned for not
    more than six months, or both.
      (2) The head of any Federal agency which has issued a lease,
    license, permit, or other agreement authorizing a person to import
    or export fish, wildlife, or plants, or to operate a quarantine
    station for imported wildlife, or authorizing the use of Federal
    lands, including grazing of domestic livestock, to any person who
    is convicted of a criminal violation of this chapter or any
    regulation, permit, or certificate issued hereunder may immediately
    modify, suspend, or revoke each lease, license, permit, or other
    agreement. The Secretary shall also suspend for a period of up to
    one year, or cancel, any Federal hunting or fishing permits or
    stamps issued to any person who is convicted of a criminal
    violation of any provision of this chapter or any regulation,
    permit, or certificate issued hereunder. The United States shall
    not be liable for the payments of any compensation, reimbursement,
    or damages in connection with the modification, suspension, or
    revocation of any leases, licenses, permits, stamps, or other
    agreements pursuant to this section.
      (3) Notwithstanding any other provision of this chapter, it shall
    be a defense to prosecution under this subsection if the defendant
    committed the offense based on a good faith belief that he was
    acting to protect himself or herself, a member of his or her
    family, or any other individual, from bodily harm from any
    endangered or threatened species.
    (c) District court jurisdiction
      The several district courts of the United States, including the
    courts enumerated in section 460 of title 28, shall have
    jurisdiction over any actions arising under this chapter. For the
    purpose of this chapter, American Samoa shall be included within
    the judicial district of the District Court of the United States
    for the District of Hawaii.
    (d) Rewards and certain incidental expenses
      The Secretary or the Secretary of the Treasury shall pay, from
    sums received as penalties, fines, or forfeitures of property for
    any violation of this chapter or any regulation issued hereunder
    (1) a reward to any person who furnishes information which leads to
    an arrest, a criminal conviction, civil penalty assessment, or
    forfeiture of property for any violation of this chapter or any
    regulation issued hereunder, and (2) the reasonable and necessary
    costs incurred by any person in providing temporary care for any
    fish, wildlife, or plant pending the disposition of any civil or
    criminal proceeding alleging a violation of this chapter with
    respect to that fish, wildlife, or plant. The amount of the reward,
    if any, is to be designated by the Secretary or the Secretary of
    the Treasury, as appropriate. Any officer or employee of the United
    States or any State or local government who furnishes information
    or renders service in the performance of his official duties is
    ineligible for payment under this subsection. Whenever the balance
    of sums received under this section and section 3375(d) of this
    title, as penalties or fines, or from forfeitures of property,
    exceed $500,000, the Secretary of the Treasury shall deposit an
    amount equal to such excess balance in the cooperative endangered
    species conservation fund established under section 1535(i) of this
    title.
    (e) Enforcement
      (1) The provisions of this chapter and any regulations or permits
    issued pursuant thereto shall be enforced by the Secretary, the
    Secretary of the Treasury, or the Secretary of the Department in
    which the Coast Guard is operating, or all such Secretaries. Each
    such Secretary may utilize by agreement, with or without
    reimbursement, the personnel, services, and facilities of any other
    Federal agency or any State agency for purposes of enforcing this
    chapter.
      (2) The judges of the district courts of the United States and
    the United States magistrate judges may, within their respective
    jurisdictions, upon proper oath or affirmation showing probable
    cause, issue such warrants or other process as may be required for
    enforcement of this chapter and any regulation issued thereunder.
      (3) Any person authorized by the Secretary, the Secretary of the
    Treasury, or the Secretary of the Department in which the Coast
    Guard is operating, to enforce this chapter may detain for
    inspection and inspect any package, crate, or other container,
    including its contents, and all accompanying documents, upon
    importation or exportation. Such person may make arrests without a
    warrant for any violation of this chapter if he has reasonable
    grounds to believe that the person to be arrested is committing the
    violation in his presence or view, and may execute and serve any
    arrest warrant, search warrant, or other warrant or civil or
    criminal process issued by any officer or court of competent
    jurisdiction for enforcement of this chapter. Such person so
    authorized may search and seize, with or without a warrant, as
    authorized by law. Any fish, wildlife, property, or item so seized
    shall be held by any person authorized by the Secretary, the
    Secretary of the Treasury, or the Secretary of the Department in
    which the Coast Guard is operating pending disposition of civil or
    criminal proceedings, or the institution of an action in rem for
    forfeiture of such fish, wildlife, property, or item pursuant to
    paragraph (4) of this subsection; except that the Secretary may, in
    lieu of holding such fish, wildlife, property, or item, permit the
    owner or consignee to post a bond or other surety satisfactory to
    the Secretary, but upon forfeiture of any such property to the
    United States, or the abandonment or waiver of any claim to any
    such property, it shall be disposed of (other than by sale to the
    general public) by the Secretary in such a manner, consistent with
    the purposes of this chapter, as the Secretary shall by regulation
    prescribe.
      (4)(A) All fish or wildlife or plants taken, possessed, sold,
    purchased, offered for sale or purchase, transported, delivered,
    received, carried, shipped, exported, or imported contrary to the
    provisions of this chapter, any regulation made pursuant thereto,
    or any permit or certificate issued hereunder shall be subject to
    forfeiture to the United States.
      (B) All guns, traps, nets, and other equipment, vessels,
    vehicles, aircraft, and other means of transportation used to aid
    the taking, possessing, selling, purchasing, offering for sale or
    purchase, transporting, delivering, receiving, carrying, shipping,
    exporting, or importing of any fish or wildlife or plants in
    violation of this chapter, any regulation made pursuant thereto, or
    any permit or certificate issued thereunder shall be subject to
    forfeiture to the United States upon conviction of a criminal
    violation pursuant to subsection (b)(1) of this section.
      (5) All provisions of law relating to the seizure, forfeiture,
    and condemnation of a vessel for violation of the customs laws, the
    disposition of such vessel or the proceeds from the sale thereof,
    and the remission or mitigation of such forfeiture, shall apply to
    the seizures and forfeitures incurred, or alleged to have been
    incurred, under the provisions of this chapter, insofar as such
    provisions of law are applicable and not inconsistent with the
    provisions of this chapter; except that all powers, rights, and
    duties conferred or imposed by the customs laws upon any officer or
    employee of the Treasury Department shall, for the purposes of this
    chapter, be exercised or performed by the Secretary or by such
    persons as he may designate.
      (6) The Attorney General of the United States may seek to enjoin
    any person who is alleged to be in violation of any provision of
    this chapter or regulation issued under authority thereof.
    (f) Regulations
      The Secretary, the Secretary of the Treasury, and the Secretary
    of the Department in which the Coast Guard is operating, are
    authorized to promulgate such regulations as may be appropriate to
    enforce this chapter, and charge reasonable fees for expenses to
    the Government connected with permits or certificates authorized by
    this chapter including processing applications and reasonable
    inspections, and with the transfer, board, handling, or storage of
    fish or wildlife or plants and evidentiary items seized and
    forfeited under this chapter. All such fees collected pursuant to
    this subsection shall be deposited in the Treasury to the credit of
    the appropriation which is current and chargeable for the cost of
    furnishing the services. Appropriated funds may be expended pending
    reimbursement from parties in interest.
    (g) Citizen suits
      (1) Except as provided in paragraph (2) of this subsection any
    person may commence a civil suit on his own behalf - 
        (A) to enjoin any person, including the United States and any
      other governmental instrumentality or agency (to the extent
      permitted by the eleventh amendment to the Constitution), who is
      alleged to be in violation of any provision of this chapter or
      regulation issued under the authority thereof; or
        (B) to compel the Secretary to apply, pursuant to section
      1535(g)(2)(B)(ii) of this title, the prohibitions set forth in or
      authorized pursuant to section 1533(d) or 1538(a)(1)(B) of this
      title with respect to the taking of any resident endangered
      species or threatened species within any State; or
        (C) against the Secretary where there is alleged a failure of
      the Secretary to perform any act or duty under section 1533 of
      this title which is not discretionary with the Secretary.

    The district courts shall have jurisdiction, without regard to the
    amount in controversy or the citizenship of the parties, to enforce
    any such provision or regulation, or to order the Secretary to
    perform such act or duty, as the case may be. In any civil suit
    commenced under subparagraph (B) the district court shall compel
    the Secretary to apply the prohibition sought if the court finds
    that the allegation that an emergency exists is supported by
    substantial evidence.
      (2)(A) No action may be commenced under subparagraph (1)(A) of
    this section - 
        (i) prior to sixty days after written notice of the violation
      has been given to the Secretary, and to any alleged violator of
      any such provision or regulation;
        (ii) if the Secretary has commenced action to impose a penalty
      pursuant to subsection (a) of this section; or
        (iii) if the United States has commenced and is diligently
      prosecuting a criminal action in a court of the United States or
      a State to redress a violation of any such provision or
      regulation.

      (B) No action may be commenced under subparagraph (1)(B) of this
    section - 
        (i) prior to sixty days after written notice has been given to
      the Secretary setting forth the reasons why an emergency is
      thought to exist with respect to an endangered species or a
      threatened species in the State concerned; or
        (ii) if the Secretary has commenced and is diligently
      prosecuting action under section 1535(g)(2)(B)(ii) of this title
      to determine whether any such emergency exists.

      (C) No action may be commenced under subparagraph (1)(C) of this
    section prior to sixty days after written notice has been given to
    the Secretary; except that such action may be brought immediately
    after such notification in the case of an action under this section
    respecting an emergency posing a significant risk to the well-being
    of any species of fish or wildlife or plants.
      (3)(A) Any suit under this subsection may be brought in the
    judicial district in which the violation occurs.
      (B) In any such suit under this subsection in which the United
    States is not a party, the Attorney General, at the request of the
    Secretary, may intervene on behalf of the United States as a matter
    of right.
      (4) The court, in issuing any final order in any suit brought
    pursuant to paragraph (1) of this subsection, may award costs of
    litigation (including reasonable attorney and expert witness fees)
    to any party, whenever the court determines such award is
    appropriate.
      (5) The injunctive relief provided by this subsection shall not
    restrict any right which any person (or class of persons) may have
    under any statute or common law to seek enforcement of any standard
    or limitation or to seek any other relief (including relief against
    the Secretary or a State agency).
    (h) Coordination with other laws
      The Secretary of Agriculture and the Secretary shall provide for
    appropriate coordination of the administration of this chapter with
    the administration of the animal quarantine laws (as defined in
    section 136a(f) of title 21) and section 306 (!1) of the Tariff Act
    of 1930 (19 U.S.C. 1306). Nothing in this chapter or any amendment
    made by this chapter shall be construed as superseding or limiting
    in any manner the functions of the Secretary of Agriculture under
    any other law relating to prohibited or restricted importations or
    possession of animals and other articles and no proceeding or
    determination under this chapter shall preclude any proceeding or
    be considered determinative of any issue of fact or law in any
    proceeding under any Act administered by the Secretary of
    Agriculture. Nothing in this chapter shall be construed as
    superseding or limiting in any manner the functions and
    responsibilities of the Secretary of the Treasury under the Tariff
    Act of 1930 [19 U.S.C. 1202 et seq.], including, without
    limitation, section 527 of that Act (19 U.S.C. 1527), relating to
    the importation of wildlife taken, killed, possessed, or exported
    to the United States in violation of the laws or regulations of a
    foreign country.