CITE

    16 USC Sec. 3373                                            01/05/2009

EXPCITE

    TITLE 16 - CONSERVATION
    CHAPTER 53 - CONTROL OF ILLEGALLY TAKEN FISH AND WILDLIFE

HEAD

    Sec. 3373. Penalties and sanctions

STATUTE

    (a) Civil penalties
      (1) Any person who engages in conduct prohibited by any provision
    of this chapter (other than subsections (b), (d), and (f) of
    section 3372 of this title) and in the exercise of due care should
    know that the fish or wildlife or plants were taken, possessed,
    transported, or sold in violation of, or in a manner unlawful
    under, any underlying law, treaty, or regulation, and any person
    who knowingly violates subsection (d) or (f) of section 3372 of
    this title, may be assessed a civil penalty by the Secretary of not
    more than $10,000 for each such violation: Provided, That when the
    violation involves fish or wildlife or plants with a market value
    of less than $350, and involves only the transportation,
    acquisition, or receipt of fish or wildlife or plants taken or
    possessed in violation of any law, treaty, or regulation of the
    United States, any Indian tribal law, any foreign law, or any law
    or regulation of any State, the penalty assessed shall not exceed
    the maximum provided for violation of said law, treaty, or
    regulation, or $10,000, whichever is less.
      (2) Any person who violates subsection (b) or (f) of section 3372
    of this title, except as provided in paragraph (1), may be assessed
    a civil penalty by the Secretary of not more than $250.
      (3) For purposes of paragraphs (1) and (2), any reference to a
    provision of this chapter or to a section of this chapter shall be
    treated as including any regulation issued to carry out any such
    provision or section.
      (4) No civil penalty may be assessed under this subsection unless
    the person accused of the violation is given notice and opportunity
    for a hearing with respect to the violation. 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 district in which a person may have taken
    or been in possession of the said fish or wildlife or plants.
      (5) Any civil penalty assessed under this subsection may be
    remitted or mitigated by the Secretary.
      (6) In determining the amount of any penalty assessed pursuant to
    paragraphs (1) and (2), the Secretary shall take into account the
    nature, circumstances, extent, and gravity of the prohibited act
    committed, and with respect to the violator, the degree of
    culpability, ability to pay, and such other matters as justice may
    require.
    (b) Hearings
      Hearings held during proceedings for the assessment of civil
    penalties shall be conducted in accordance with section 554 of
    title 5. The administrative law judge may issue subpenas for the
    attendance and testimony of witnesses and the production of
    relevant papers, books, or 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
    contumacy or refusal to obey a subpena issued pursuant to this
    paragraph and served upon any person, 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 administrative law judge or to appear and produce
    documents before the administrative law judge, or both, and any
    failure to obey such order of the court may be punished by such
    court as a contempt thereof.
    (c) Review of civil penalty
      Any person against whom a civil penalty is assessed under this
    section may obtain review thereof in the appropriate District Court
    of the United States by filing a complaint in such court within 30
    days after the date of such order and by simultaneously serving a
    copy of the complaint by certified mail on the Secretary, the
    Attorney General, and the appropriate United States attorney. 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. 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 may request the
    Attorney General of the United States to institute a civil action
    in an appropriate district court of the United States to collect
    the penalty, and such court shall have jurisdiction to hear and
    decide any such action. In hearing such action, the court shall
    have authority to review the violation and the assessment of the
    civil penalty de novo.
    (d) Criminal penalties
      (1) Any person who -
        (A) knowingly imports or exports any fish or wildlife or plants
      in violation of any provision of this chapter (other than
      subsections (b), (d), and (f) of section 3372 of this title), or
        (B) violates any provision of this chapter (other than
      subsections (b), (d), and (f) of section 3372 of this title) by
      knowingly engaging in conduct that involves the sale or purchase
      of, the offer of sale or purchase of, or the intent to sell or
      purchase, fish or wildlife or plants with a market value in
      excess of $350,
    knowing that the fish or wildlife or plants were taken, possessed,
    transported, or sold in violation of, or in a manner unlawful
    under, any underlying law, treaty or regulation, shall be fined not
    more than $20,000, or imprisoned for not more than five years, or
    both. 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 district in
    which the defendant may have taken or been in possession of the
    said fish or wildlife or plants.
      (2) Any person who knowingly engages in conduct prohibited by any
    provision of this chapter (other than subsections (b), (d), and (f)
    of section 3372 of this title) and in the exercise of due care
    should know that the fish or wildlife or plants were taken,
    possessed, transported, or sold in violation of, or in a manner
    unlawful under, any underlying law, treaty or regulation shall be
    fined not more than $10,000, or imprisoned for not more than one
    year, or both. 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
    district in which the defendant may have taken or been in
    possession of the said fish or wildlife or plants.
      (3) Any person who knowingly violates section subsection (d) or
    (f) of section 3372 of this title -
        (A) shall be fined under title 18 or imprisoned for not more
      than 5 years, or both, if the offense involves -
          (i) the importation or exportation of fish or wildlife or
        plants; or
          (ii) the sale or purchase, offer of sale or purchase, or
        commission of an act with intent to sell or purchase fish or
        wildlife or plants with a market value greater than $350; and
        (B) shall be fined under title 18 or imprisoned for not more
      than 1 year, or both, if the offense does not involve conduct
      described in subparagraph (A).
    (e) Permit sanctions
      The Secretary may also suspend, modify, or cancel any Federal
    hunting or fishing license, permit, or stamp, or any license or
    permit authorizing a person to import or export fish or wildlife or
    plants (other than a permit or license issued pursuant to the
    Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C.
    1801 et seq.]), or to operate a quarantine station or rescue center
    for imported wildlife or plants, issued to any person who is
    convicted of a criminal violation of any provision of this chapter
    or any regulation issued hereunder. The Secretary shall not be
    liable for the payments of any compensation, reimbursement, or
    damages in connection with the modification, suspension, or
    revocation of any licenses, permits, stamps, or other agreements
    pursuant to this section.

SOURCE

    (Pub. L. 97-79, Sec. 4, Nov. 16, 1981, 95 Stat. 1074; Pub. L. 100-
    653, title I, Secs. 102, 103, Nov. 14, 1988, 102 Stat. 3825, 3826;
    Pub. L. 110-234, title VII, Sec. 8204(c), (f), May 22, 2008, 122
    Stat. 1294; Pub. L. 110-246, Sec. 4(a), title VIII, Sec. 8204(c),
    (f), June 18, 2008, 122 Stat. 1664, 2055, 2056.)

REFERENCES IN TEXT

      This chapter, referred to in subsecs. (a)(1), (3), (d)(1), (2),
    and (e), was in the original "this Act", meaning Pub. L. 97-79,
    Nov. 16, 1981, 95 Stat. 1073, which is classified principally to
    this chapter. For complete classification of this Act to the Code,
    see Short Title note set out under section 3371 of this title and
    Tables.
      The Magnuson-Stevens Fishery Conservation and Management Act,
    referred to in subsec. (e), is Pub. L. 94-265, Apr. 13, 1976, 90
    Stat. 331, as amended, which is classified principally to chapter
    38 (Sec. 1801 et seq.) of this title. For complete classification
    of this Act to the Code, see Short Title note set out under section
    1801 of this title and Tables.

CODIFICATION

      "Magnuson-Stevens Fishery Conservation and Management Act"
    substituted for "Fishery Conservation and Management Act of 1976"
    in subsec. (e), on authority of Pub. L. 96-561, title II, Sec.
    238(b), Dec. 22, 1980, 94 Stat. 3300, which provided that all
    references to the Fishery Conservation and Management Act of 1976
    be redesignated as references to the Magnuson Fishery Conservation
    and Management Act and Pub. L. 104-208, div. A, title I, Sec.
    101(a) [title II, Sec. 211(b)], Sept. 30, 1996, 110 Stat. 3009,
    3009-41, which provided that all references to the Magnuson Fishery
    Conservation and Management Act be redesignated as references to
    the Magnuson-Stevens Fishery Conservation and Management Act.
      Pub. L. 110-234 and Pub. L. 110-246 made identical amendments to
    this section. The amendments by Pub. L. 110-234 were repealed by
    section 4(a) of Pub. L. 110-246.

AMENDMENTS

      2008 - Subsec. (a)(1). Pub. L. 110-246, Sec. 8204(f), made
    technical corrections to directory language of Pub. L. 100-653,
    Sec. 102(c). See 1988 Amendment note below.
      Pub. L. 110-246, Sec. 8204(c)(1), (2), substituted "subsections
    (b), (d), and (f) of section 3372" for "subsections (b) and (d) of
    section 3372" and "subsection (d) or (f) of section 3372" for
    "section 3372(d)".
      Subsec. (a)(2). Pub. L. 110-246, Sec. 8204(c)(3), substituted
    "subsection (b) or (f) of section 3372 of this title, except as
    provided in paragraph (1)," for "subsection 3372(b)".
      Subsec. (d)(1), (2). Pub. L. 110-246, Sec. 8204(f), made
    technical corrections to directory language of Pub. L. 100-653,
    Sec. 102(c). See 1988 Amendment note below.
      Pub. L. 110-246, Sec. 8204(c)(1), substituted "subsections (b),
    (d), and (f) of section 3372" for "subsections (b) and (d) of
    section 3372" in pars. (1)(A), (B), and (2).
      Subsec. (d)(3). Pub. L. 110-246, Sec. 8204(c)(2), substituted
    "subsection (d) or (f) of section 3372" for "section 3372(d)" in
    introductory provisions.
      1988 - Subsec. (a)(1). Pub. L. 100-653, Sec. 102(c), as amended
    by Pub. L. 110-246, Sec. 8204(f), substituted "(other than
    subsections (b) and (d) of section 3372 of this title)" for "(other
    than subsection 3372(b) of this title)".
      Pub. L. 100-653, Sec. 102(a), inserted "and any person who
    knowingly violates section 3372(d) of this title," after "any
    underlying law, treaty, or regulation,".
      Subsec. (c). Pub. L. 100-653, Sec. 103, amended first sentence
    generally. Prior to amendment, first sentence read as follows: "Any
    person against whom a civil penalty is assessed under this section
    may obtain review thereof in the appropriate district court of the
    United States by filing a notice of appeal in such court within
    thirty days from the date of such order and by simultaneously
    sending a copy of such notice by certified mail to the Secretary."
      Subsec. (d)(1), (2). Pub. L. 100-653, Sec. 102(c), as amended by
    Pub. L. 110-246, Sec. 8204(f), substituted "(other than subsections
    (b) and (d) of section 3372 of this title)" for "(other than
    subsection 3372(b) of this title)" in pars. (1)(A), (B), and (2).
      Subsec. (d)(3). Pub. L. 100-653, Sec. 102(b), added par. (3).
                     EFFECTIVE DATE OF 2008 AMENDMENT
      Amendment of this section and repeal of Pub. L. 110-234 by Pub.
    L. 110-246 effective May 22, 2008, the date of enactment of Pub. L.
    110-234, except as otherwise provided, see section 4 of Pub. L. 110-
    246, set out as an Effective Date note under section 8701 of Title
    7, Agriculture.
      Pub. L. 110-234, title VIII, Sec. 8204(f), May 22, 2008, 122
    Stat. 1294, and Pub. L. 110-246, Sec. 4(a), title VIII, Sec.
    8204(f), June 18, 2008, 122 Stat. 1664, 2056, provided that the
    amendment made by section 8204(f) is effective Nov. 14, 1988, and
    as if included in the enactment of section 102(c) of Pub. L. 100-
    653.
      [Pub. L. 110-234 and Pub. L. 110-246 enacted identical
    provisions. Pub. L. 110-234 was repealed by section 4(a) of Pub. L.
    110-246, set out as a note under section 8701 of Title 7,
    Agriculture.]

TRANSFER OF FUNCTIONS

      For transfer of functions of the Secretary of Agriculture
    relating to agricultural import and entry inspection activities
    under this chapter to the Secretary of Homeland Security, and for
    treatment of related references, see sections 231, 551(d), 552(d),
    and 557 of Title 6, Domestic Security, and the Department of
    Homeland Security Reorganization Plan of November 25, 2002, as
    modified, set out as a note under section 542 of Title 6.
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