Sec. 404. Civil and criminal penalties
772 words·~4 min read·
/bill/116/s/1995/is/section-404A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Any person that violates section 401 may be assessed a civil penalty by the Administrator of not more than $250,000 for each violation. Each violation described in subparagraph
(A)and each day during which that violation continues shall be considered a separate offense. The civil penalty described in paragraph
(1)shall be assessed by the Administrator by a written order, which shall specify the amount of the penalty and the basis for the penalty under subparagraph
(B)considered by the Administrator. Subject to paragraph (1)(A), the amount of the civil penalty shall be determined by the Administrator, after considering— the gravity of the violation; the degree of culpability of the person; the size and type of the business of the person; and any history of prior offenses by the person under the food safety law. A written order under subparagraph
(A)may be reviewed only in accordance with subsection (c). Except as provided in paragraphs
(2)and (3), a person that violates subparagraph
(A)or
(B)of section 401(1) shall be imprisoned for not more than 1 year, fined not more than $10,000, or both. A person that commits a violation described in paragraph
(1)after a conviction of that person under this section has become final, or commits such a violation with the intent to defraud or mislead, shall be imprisoned for not more than 3 years, fined not more than $100,000, or both. No person shall be subject to the penalties of this subsection— for having received, proffered, or delivered in interstate commerce any food, if the receipt, proffer, or delivery was made in good faith, unless that person refuses to furnish (on request of an officer or employee designated by the Administrator)— the name, address, and contact information of the person from whom that person purchased or received the food; copies of all documents relating to the person from whom that person purchased or received the food; and copies of all documents pertaining to the delivery of the food to that person; or if that person establishes a guaranty signed by, and containing the name and address of, the person from whom that person received in good faith the food, stating that the food is not adulterated or misbranded within the meaning of this Act. An order assessing a civil penalty under subsection
(a)shall be a final order unless the person— not later than 30 days after the effective date of the order, files a petition for judicial review of the order in— the court of appeals of the United States for the judicial circuit in which that person resides or has its principal place of business; or the United States Court of Appeals for the District of Columbia Circuit; and simultaneously serves a copy of the petition by certified mail to the Administrator. Not later than 45 days after the service of a copy of the petition under paragraph (1)(B), the Administrator shall file in the court a certified copy of the administrative record upon which the order was issued. The findings of the Administrator relating to the order shall be set aside only if found to be unsupported by substantial evidence on the record as a whole. If any person fails to pay a civil penalty assessed under subsection
(a)after the order assessing the penalty has become a final order, or after the court of appeals described in subsection
(c)has entered final judgment in favor of the Administrator, the Administrator shall refer the matter to the Attorney General, who shall institute in a district court of the United States of competent jurisdiction a civil action to recover the amount assessed. In a civil action under paragraph (1), the validity and appropriateness of the order of the Administrator assessing the civil penalty shall not be subject to judicial review. The Administrator— shall deposit penalties collected under this section in an account in the Treasury; and may use the funds in the account, without further appropriation or fiscal year limitation— to carry out enforcement activities under food safety law; or to provide assistance to States to inspect retail commercial food establishments or other food or firms under the jurisdiction of State food safety programs. Nothing in this Act requires the Administrator to report for prosecution, or for the commencement of an action, the violation of the food safety law in a case in which the Administrator finds that the public interest will be adequately served by the assessment of a civil penalty under this section. The remedies provided in this section may be in addition to, and not exclusive of, other remedies that may be available.