Sec. 409. Enforcement
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The provisions of this Act shall be enforced by the Secretary and the Secretary of the department in which the Coast Guard is operating. In enforcing this Act, such Secretaries may by agreement utilize, on a reimbursable or nonreimbursable basis, the personnel, services, equipment (including aircraft and vessels), and facilities of any other Federal agency, including all elements of the Department of Defense, or of any State agency. Such Secretaries shall, and the head of any Federal or State agency that has entered into an agreement with either such Secretary under this section may (if the agreement so provides), authorize officers to enforce the provisions of this Act or any regulation promulgated under this Act.
Any officer who is authorized under subsection
(a)to enforce the provisions of this Act may, with or without a warrant or other process, as authorized by law— arrest any person, if the officer has reasonable cause to believe that such person has committed an act prohibited by section 408; board, search or inspect, any offshore aquaculture facility, associated onshore facility, vessel, or other conveyance (including its gear, furniture, appurtenances, stores, records, and cargo) which is subject to the provisions of this Act; seize any vessel, or other conveyance (together with its gear, furniture, appurtenances, stores, records, and cargo) used or employed in, or with respect to which it reasonably appears that such vessel was used or employed in, the violation of any provision of this Act; seize any fish (wherever found) taken, produced, imported, exported, transported, sold, received, acquired, or purchased in any manner, in connection with or as a result of the violation of any provision of this Act; seize any evidence related to any violation of any provision of this Act; detain any fish or fish product to determine compliance with this Act; search and seize, in accordance with any guidelines which may be issued by the Attorney General; access, directly or indirectly, for enforcement purposes any data or information required to be provided under this Act or regulations promulgated under this Act, including data from vessel or facility monitoring systems, automatic identification systems, long-range identification and tracking systems, or any similar system; execute and serve any subpoena, arrest warrant, search warrant issued in accordance with Rule 41 of the Federal Rules of Criminal Procedure, or other warrant or civil or criminal process issued by any officer or court of competent jurisdiction; and exercise any other lawful authority. If any authorized officer finds that a person, offshore aquaculture facility, associated onshore facility, vessel, or other conveyance is engaging or has been engaged in the violation of any provision of this Act, such officer may issue a citation to the owner or operator of such vessel in lieu of proceeding under subsections (f), (g), or (h). If a permit has been issued pursuant to this Act for such facility or conveyance, such officer shall note the issuance of any citation under this subsection, including the date thereof and the reason therefor, on the permit. The Secretary shall maintain a record of all citations issued pursuant to this subsection. For the purposes of conducting any investigation or hearing under this Act, or any other marine resource law enforced by the Secretary, the Secretary may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, photographs, records, books, and documents in any form, including those in electronic, optical or magnetic form, 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. The several district courts of the United States shall have jurisdiction over any actions arising under this Act. For purposes of this section, for Hawaii or any possession of the United States in the Pacific Ocean, the appropriate court is the United States District Court for the District of Hawaii, except that in the case of Guam and Wake Island, the appropriate court is the United States District Court for the District of Guam, and in the case of the Northern Mariana Islands, the appropriate court is the United States District Court for the District of the Northern Mariana Islands. Each violation shall be a separate offense and the offense shall be deemed to have been committed not only in the district where the violation first occurred, but also in any other district as authorized by law. Any offenses not committed in any district are subject to the venue provisions of section 3238 of title 18, United States Code. Any person who is found by the Secretary, after notice and opportunity for a hearing in accordance with section 554 of title 5, United States Code, to have committed an act prohibited by section 408 shall be liable to the United States for a civil penalty. The amount of the civil penalty shall not exceed the amount specified in section 308(a) of the Magnuson-Stevens Fishery Conservation and Management Act ( 16 U.S.C. 1858(a) ) 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 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. The Secretary may compromise, modify, or remit, with or without conditions, any civil administrative penalty which is or may be imposed under this subsection and that has not been referred to the Attorney General for further enforcement action. An offshore aquaculture facility, associated onshore facility, vessel, or other conveyance (including its gear, furniture, appurtenances, stores, records, and cargo) used in the commission of an act prohibited by section 408 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. If any person fails to pay an assessment of a civil penalty under paragraph
(1)after it has become a final and unappealable order, the Secretary shall refer the matter to the Attorney General, who shall recover the amount assessed (plus interest at current prevailing rates from the date of the final order) 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. Any person who fails to pay, on a timely basis, the amount of an assessment of a civil penalty shall be required to pay, in addition to such amount and interest, attorney's fees and costs for collection proceedings and a quarterly nonpayment penalty for each quarter during which such failure to pay persists. Such nonpayment penalty shall be in an amount equal to 20 percent of the aggregate amount of such person's penalties and nonpayment penalties that are unpaid as of the beginning of such quarter. With respect to any case in which an offshore aquaculture facility, associated onshore facility, vessel, or other conveyance was used in the commission of an act prohibited under section 408, the owner or operator of an offshore aquaculture facility, associated onshore facility, vessel, or other conveyance (or any other person who has been issued or has applied for a permit under this Act), has acted in violation of section 408, or any civil penalty, criminal fine, or amount in settlement of a civil forfeiture imposed under this Act on a person, offshore aquaculture facility, associated onshore facility, vessel, or other conveyance that has been issued or has applied for a permit under this Act has not been paid and is overdue, the Secretary may— revoke any permit issued with respect to such person, offshore aquaculture facility, associated onshore facility, vessel, other conveyance, with or without prejudice to the issuance of subsequent permits; suspend such permit for a period of time considered by the Secretary to be appropriate; deny such permit; or impose additional conditions and restrictions on such permit. In imposing a sanction under this paragraph, the Secretary shall take into account the nature, circumstances, extent, and gravity of the prohibited acts for which the sanction is imposed and, with respect to the violator, the degree of culpability, any history of prior offenses, and such other matters as justice may require. Transfer of ownership of an offshore aquaculture facility, associated onshore facility, vessel, or other conveyance, 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 facility or conveyance, 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 facility or conveyance at the time of the transfer. In the case of any permit that is suspended under this paragraph 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. No sanction shall be imposed under this paragraph 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. Any person against whom a civil penalty is assessed under this subsection or against whom a permit sanction is imposed under this subsection (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 that constitutes a final agency action. 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, United States Code. 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, United States Code. Upon the request of the Secretary, the Attorney General of the United States may commence a civil action for appropriate relief, including a permanent or temporary injunction, for any violation of this Act (including regulations). A person who is convicted of an offense in violation of this Act shall forfeit to the United States— any property, real or personal, constituting or traceable to the gross proceeds taken, obtained, or retained, in connection with or as a result of the offense, including, without limitation, any fish (or the fair market value thereof); and any property, real or personal, used or intended to be used, in any manner, to commit or facilitate the commission of the offense, including, without limitation, any vessel (including the vessel's equipment, stores, catch and cargo), vehicle, aircraft, or other means of transportation. Pursuant to section 2461(c) of title 28, United States Code, the provisions of section 413 of the Controlled Substances Act ( 21 U.S.C. 853 ) other than subsection
(d)thereof shall apply to criminal forfeitures under this section. The property set forth below shall be subject to administrative or judicial forfeiture to the United States in accordance with the provisions of chapter 46 of title 18, United States Code, and no property right shall exist in it: Any property, real or personal, constituting or traceable to the gross proceeds taken, obtained, or retained, in connection with or as a result of a violation of this Act, including, without limitation, any fish (or the fair market value thereof). Any property, real or personal, used or intended to be used, in any manner, to commit or facilitate the commission of a violation of this Act, including, without limitation, any vessel (including the vessel's equipment, stores, catch and cargo), vehicle, aircraft, or other means of transportation. All provisions of law relating to seizure, summary judgment, and forfeiture and condemnation for violation of the customs laws, the disposition of the property forfeited or condemned or the proceeds from the sale thereof, the remission or mitigation of such forfeitures, and the compromise of claims shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this Act, insofar as applicable and not inconsistent with the provisions hereof. For seizures and forfeitures of property under this section by the Secretary, such duties as are imposed upon the customs officer or any other person with respect to the seizure and forfeiture of property under the customs law may be performed by such officers as are designated by the Secretary or, upon request of the Secretary, by any other agency that has authority to manage and dispose of seized property. For the purposes of this section there is a rebuttable presumption that all fish, or components thereof, found in an offshore aquaculture facility or on board a vessel a vessel or other conveyance that is used or seized in connection with a violation of this Act were produced, taken, obtained, transported, or retained in violation of this Act. Any person (other than a foreign government agency, or entity wholly owned and controlled by a foreign government) who knowingly commits any act prohibited under section 408 shall be imprisoned for not more than 5 years or fined not more than $500,000 for individuals or $1,000,000 for an organization, or both, except that, if in the commission of any such offense the individual uses a dangerous weapon, engages in conduct that causes bodily injury to any officer authorized to enforce the provisions of this Act, or places any such officer in fear of imminent bodily injury, the maximum term of imprisonment is not more than 10 years. Any person (other than a foreign government agency, or entity wholly owned and controlled by a foreign government) who violates a provision under section 408 and who, in the exercise of due care should know that such person's conduct violates such provision, shall be fined under title 18, United States Code, or imprisoned not more than one year, or both. The Governor of an eligible State may apply to the Secretary for execution of a joint enforcement agreement with the Secretary that will authorize the deputization and funding of State law enforcement officers with marine law enforcement responsibilities to perform duties of the Secretary relating to law enforcement provisions under this title or any other marine resource law enforced by the Secretary. Upon receiving an application meeting the requirements of this subsection, the Secretary may enter into a joint enforcement agreement with the requesting State. A State is eligible to participate in the cooperative enforcement agreements under this section if it is in, or bordering on, the Atlantic Ocean (including the Caribbean Sea), the Pacific Ocean, the Arctic Ocean, the Gulf of Mexico, Long Island Sound, or 1 or more of the Great Lakes. Joint enforcement agreements executed under paragraph (1)— shall be consistent with the purposes and intent of this section to the extent applicable to the regulated activities; may include specifications for joint management responsibilities as provided by the first section of Public Law 91–412 ( 15 U.S.C. 1525 ); and shall provide for confidentiality of data and information submitted to the State under this Act. The Secretary shall include in each joint enforcement agreement an allocation of funds to assist in management of the agreement. The allocation shall be fairly distributed among all eligible States participating in cooperative enforcement agreements under this subsection, based upon consideration of Federal marine enforcement needs, the specific marine conservation enforcement needs of each participating eligible State, and the capacity of the State to undertake the marine enforcement mission and assist with enforcement needs. The agreement may provide for amounts to be withheld by the Secretary for the cost of any technical or other assistance provided to the State by the Secretary under the agreement.
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- Pub. L. 91-412
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