16 U.S.C. § 5507: Civil penalties and permit…

Summary

The Secretary can fine anyone who breaks the rules in section 5505. After giving notice and a hearing under federal administrative law, the Secretary may assess a civil penalty up to $100,000 for each violation. Each day a violation continues counts as a separate offense. The Secretary will send a written notice of the penalty and will consider how serious the act was, the person’s blameworthiness, any prior offenses, and other fairness factors. The Secretary may also reduce, change, or cancel a penalty. If a U.S. vessel was used, a permit holder or applicant violated the rules, or related fines or settlements are unpaid and overdue, the Secretary may revoke, suspend, deny, or add conditions to permits. The Secretary must consider the same kinds of factors when deciding permit sanctions. Selling a vessel does not remove a permit sanction that is in effect or pending, and the owner must tell a buyer in writing about any sanctions, although the Secretary may waive sanctions for court-ordered transfers. Permits suspended for nonpayment are reinstated after the penalty and interest are paid. Before any sanction is imposed, there must be an opportunity for a hearing. For hearings, the Secretary can issue subpoenas, take oaths, and require documents and testimony; witnesses get the usual federal fees and travel pay, and courts can enforce subpoenas. Anyone fined or whose permit is sanctioned (except for a suspension only for nonpayment) can ask a U.S. district court to review the Secretary’s action by filing within 30 days. If a final order is not paid, the Attorney General will collect it in federal court and the court will not re-litigate the penalty’s validity. A high seas fishing vessel used in a violation (including its gear and cargo) is itself liable; the penalty becomes a maritime lien and can be recovered in an in rem federal action.

Title 16, §5507

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(a)Civil penalties

(1)Any person who is found by the Secretary, after notice and opportunity for a hearing in accordance with section 554 of title 5, to have committed an act prohibited by section 5505 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 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 violation, the degree of culpability, any history of prior offenses, and such other matters as justice may require.

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

(b)Permit sanctions

(1)In any case in which—

(A)a vessel of the United States has been used in the commission of an act prohibited under section 5505 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 section 5503 of this title has acted in violation of section 5505 of this title; or

(C)any amount in settlement of a civil forfeiture imposed on a high seas fishing vessel or other property, or any civil penalty or criminal fine imposed on a high seas fishing vessel or on an owner or operator of such a vessel or on any other person who has been issued or has applied for a permit under any fishery resource statute enforced by the Secretary, has not been paid and is overdue, the Secretary may—

(i)revoke any permit issued to or applied for by such vessel or person under this chapter, 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 such permit.

(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 high seas fishing 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. The Secretary may waive or compromise a sanction in the case of a transfer pursuant to court order.

(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 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.

(c)Hearing

For the purposes of conducting any hearing under this section, the Secretary may issue subpoenas 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 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 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.

(d)Judicial review

Any person against whom a civil penalty is assessed under subsection (a) or against whose vessel a permit sanction is imposed under subsection (b) (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 penalty or sanction. The Secretary shall promptly file in such court a certified copy of the record upon which such penalty or sanction was 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.

(e)Collection

(1)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 matter shall be referred to the Attorney General, 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.

(2)A high seas fishing vessel (including its fishing gear, furniture, appurtenances, stores, and cargo) used in the commission of an act prohibited by section 5505 of this title shall be liable in rem for any civil penalty assessed for such violation under subsection (a) 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 that may be recovered in an action in rem in the district court of the United States having jurisdiction over the vessel.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 120 days after Nov. 3, 1995, see section 111 of Pub. L. 104–43, set out as a note under section 5501 of this title.

§5507 Civil Penalties and Permit Sanctions

Summary

Title 16, §5507

Notes & Related Subsidiaries

Statutory Notes and Related Subsidiaries

Effective Date

Citations & Metadata