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 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. 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, 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. 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.