16 U.S.C. § 1858
Any person who is found by the Secretary, after notice and an opportunity for a hearing in accordance with section 554 of title 5, to have committed an act prohibited by section 1857 or section 1870 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, or his designee, 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.
Any person against whom a civil penalty is assessed under subsection (a) or against whom a permit sanction is imposed under subsection (g) (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. 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. 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.
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 Secretary shall refer the matter to the Attorney General of the United States, 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.
A fishing vessel (including its fishing gear, furniture, appurtenances, stores, and cargo) used in the commission of an act prohibited by section 1857 of this title 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. Such penalty shall constitute a maritime lien on such vessel which may be recovered in an action in rem in the district court of the United States having jurisdiction over the vessel.
The Secretary may compromise, modify, or remit, with or without conditions, any civil penalty which is subject to imposition or which has been imposed under this section.
For the purposes of conducting any hearing under this section, the Secretary may issue subpenas 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 subpena 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.
16 U.S.C. § 1858
Amendment of Subsection (a) Pub. L. 116-340, §3(e), Jan. 13, 2021, 134 Stat. 5129, provided in part that, effective five years after Jan. 13, 2021, subsection (a) of this section is amended by striking "or section 1870" after "section 1857".
EDITORIAL NOTES
REFERENCES IN TEXTThis chapter, referred to in subsec. (g)(1), was in the original "this Act", meaning Pub. L. 94-265, Apr. 13, 1976, 90 Stat. 331, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.
AMENDMENTS2021-Subsec. (a). Pub. L. 116-340, §3(e)(2), struck out "or section 1870" after "section 1857". Pub. L. 116-340, §3(b), inserted "or section 1870" after "section 1857". 1996-Subsec. (a). Pub. L. 104-297, §114(a), struck out "ability to pay," after "history of prior offenses," and inserted at end "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."Subsec. (b). Pub. L. 104-297, §114(b), amended first sentence generally. Prior to amendment, first sentence read as follows: "Any person against whom a civil penalty is assessed under subsection (a) of this section may obtain review thereof in the United States district court for the appropriate district by filing a complaint in such court within 30 days from the date of such order and by simultaneously serving a copy of such complaint by certified mail on the Secretary, the Attorney General and the appropriate United States Attorney." Subsec. (g)(1). Pub. L. 104-297, §114(c), substituted "(C) any amount in settlement of a civil forfeiture imposed on a vessel or other property, or any civil penalty or criminal fine imposed on a vessel or owner or operator of a vessel or any other person who has been issued or has applied for a permit under any marine resource law enforced by the Secretary has not been paid and is overdue, or (D) any payment required for observer services provided to or contracted by an owner or operator who has been issued a permit or applied for a permit under any marine resource law administered by the Secretary has not been paid and is overdue," for "or (C) any civil penalty or criminal fine imposed on a vessel or owner or operator of a vessel or any other person who has been issued or has applied for a permit under any fishery resource law statute enforced by the Secretary has not been paid and is overdue,". 1990- Pub. L. 101-627, §114(a)(1), inserted "and permit sanctions" after "penalties" in section catchline.Subsec. (a). Pub. L. 101-627, §114(a)(2), substituted "$100,000" for "$25,000".Subsec. (g). Pub. L. 101-627, §114(a)(3), added subsec. (g). 1986-Subsec. (b). Pub. L. 99-659, §108(1), amended first sentence generally. Prior to amendment, the sentence read as follows: "Any person against whom a civil penalty is assessed under subsection (a) of this section may obtain review thereof in the appropriate court of the United States by filing a notice of appeal in such court within 30 days from the date of such order and by simultaneously sending a copy of such notice by certified mail to the Secretary".Subsecs. (d) to (f). Pub. L. 99-659, §108(2), (3), added subsec. (d) and redesignated former subsecs. (d) and (e) as (e) and (f), respectively. 1983-Subsec. (e). Pub. L. 97-453 added subsec. (e).
STATUTORY NOTES AND RELATED SUBSIDIARIES
EFFECTIVE AND TERMINATION DATES OF 2021 AMENDMENT Pub. L. 116-340, §3(c), Jan. 13, 2021, 134 Stat. 5129, provided that: "The amendments made by this Act [enacting section 1870 of this title and amending this section] shall take effect 1 year after the date of the enactment of this Act [Jan. 13, 2021]." Pub. L. 116-340, §3(e), Jan. 13, 2021, 134 Stat. 5129, provided in part that the amendment made by section 3(e)(2) is effective five years after Jan. 13, 2021.
EFFECTIVE DATESection effective Mar. 1, 1977, see section 312 of Pub. L. 94-265 formerly set out as a note under section 1857 of this title.
- Secretary
- The term "Secretary" means the Secretary of Commerce or his designee.
- conservation and management
- The term "conservation and management" refers to all of the rules, regulations, conditions, methods, and other measures (A) which are required to rebuild, restore, or maintain, and which are useful in rebuilding, restoring, or maintaining, any fishery resource and the marine environment; and (B) which are designed to assure that-(i) a supply of food and other products may be taken, and that recreational benefits may be obtained, on a continuing basis;(ii) irreversible or long-term adverse effects on fishery resources and the marine environment are avoided; and(iii) there will be a multiplicity of options available with respect to future uses of these resources.
- fishery resource
- The term "fishery resource" means any fishery, any stock of fish, any species of fish, and any habitat of fish.
- fishery
- The term "fishery" means-(A) one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics; and(B) any fishing for such stocks.
- fishing vessel
- The term "fishing vessel" means any vessel, boat, ship, or other craft which is used for, equipped to be used for, or of a type which is normally used for-(A) fishing; or(B) aiding or assisting one or more vessels at sea in the performance of any activity relating to fishing, including, but not limited to, preparation, supply, storage, refrigeration, transportation, or processing.
- fishing
- The term "fishing" means-(A) the catching, taking, or harvesting of fish;(B) the attempted catching, taking, or harvesting of fish;(C) any other activity which can reasonably be expected to result in the catching, taking, or harvesting of fish; or(D) any operations at sea in support of, or in preparation for, any activity described in subparagraphs (A) through (C).Such term does not include any scientific research activity which is conducted by a scientific research vessel.
- foreign fishing
- The term "foreign fishing" means fishing by a vessel other than a vessel of the United States.
- observer
- The term "observer" means any person required or authorized to be carried on a vessel for conservation and management purposes by regulations or permits under this chapter.
- person
- The term "person" means any individual (whether or not a citizen or national of the United States), any corporation, partnership, association, or other entity (whether or not organized or existing under the laws of any State), and any Federal, State, local, or foreign government or any entity of any such government.