PENALTIES AND ENFORCEMENT
SEC. 11.
(a) CIVIL PENALTIES.— (1) Any person who knowingly violates, and any
person engaged in business as an importer or exporter of fish, wildlife, or plants
who violates, any provision of this Act, or any provision of any permit or certificate
issued hereunder, or of any regulation issued in order to implement subsection
(a)(1)(A), (B), (C), (D), (E), or (F), (a)(2)(A), (B), (C), or (D), (c), (d) (other than regulation
relating to recordkeeping or filing of reports), (f) or (g) of section 9 of this Act,
may be assessed a civil penalty by the Secretary of not more than $ 25,000 for each
violation. Any person who knowingly violates, and any person engaged in business
as an importer or exporter of fish, wildlife, or plants who violates, any provision of
any other regulation issued under this Act may be assessed a civil penalty by the
Secretary of not more than $ 12,000 for each such violation. Any person who otherwise
violates any provision of this Act, or any regulation, permit, or certificate issued
hereunder, may be assessed a civil penalty by the Secretary of not more than $
500 for each such violation. No penalty may be assessed under this subsection unless
such person is given notice and opportunity for a hearing with respect to such violation.
Each violation shall be a separate offense. Any such civil penalty may be remitted
or mitigated by the Secretary. Upon any failure to pay a penalty assessed under
this subsection, the Secretary may request the Attorney General to institute a civil
action in a district court of the United States for any district in which such person is found, resides, or transacts business to collect the penalty and such court shall have
jurisdiction to hear and decide any such action. The court shall hear such action on
the record made before the Secretary and shall sustain his action if it is supported
by substantial evidence on the record considered as a whole.
(2) Hearings held during proceedings for the assessment of civil penalties authorized
by paragraph (1) of this subsection shall be conducted in accordance with section
554 of title 5, United States Code. The Secretary may issue subpoenas for the
attendance and testimony of witnesses and the production of relevant papers, books,
and documents, and 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 subpoena served upon any person pursuant
to this paragraph, the district court of the United States for any district in which
such person is found or 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.
(3) Notwithstanding any other provision of this Act, no civil penalty shall be imposed
if it can be shown by a preponderance of the evidence that the defendant
committed an act based on a good faith belief that he was acting to protect himself
or herself, a member of his or her family, or any other individual from bodily harm,
from any endangered or threatened species.
(b) CRIMINAL VIOLATIONS.—(1) Any person who knowingly violates any provision
of this Act, of any permit or certificate issued hereunder, or of any regulation issued
in order to implement subsection (a)(1)(A), (B), (C), (D), (E), or (F); (a)(2)(A), (B),
(C), or (D), (c), (d) (other than a regulation relating to recordkeeping, or filing of
reports), (f), or (g) of section 9 of this Act shall, upon conviction, be fined not more
than $ 50,000 or imprisoned for not more than one year, or both. Any person who
knowingly violates any provision of any other regulation issued under this Act shall,
upon conviction, be fined not more than $ 25,000 or imprisoned for not more than six
months, or both.
(2) The head of any Federal agency which has issued a lease, license, permit, or
other agreement authorizing a person to import or export fish, wildlife, or plants, or
to operate a quarantine station for imported wildlife, or authorizing the use of Federal
lands, including grazing of domestic livestock, to any person who is convicted of
a criminal violation of this Act or any regulation, permit, or certificate issued hereunder
may immediately modify, suspend, or revoke each lease, license, permit, or
other agreement. The Secretary shall also suspend for a period of up to one year, or
cancel, any Federal hunting or fishing permits or stamps issued to any person who
is convicted of a criminal violation of any provision of this Act or any regulation,
permit, or certificate issued hereunder. The United States shall not be liable for the
payments of any compensation, reimbursement, or damages in connection with the
modification, suspension, or revocation of any leases, licenses, permits, stamps, or
other agreements pursuant to this section.
(3) Notwithstanding any other provision of this Act, it shall be a defense to prosecution
under this subsection if the defendant committed the offense based on a good
faith belief that he was acting to protect himself or herself, a member of his or her
family, or any other individual, from bodily harm from any endangered or threatened
species.
(c) DISTRICT COURT JURISDICTION.—The several district courts of the United States,
including the courts enumerated in section 460 of title 28, United States Code, shall
have jurisdiction over any actions arising under this Act. For the purpose of this Act,
American Samoa shall be included within the judicial district of the District Court of
the United States for the District of Hawaii.
(d) REWARDS AND CERTAIN INCIDENTAL EXPENSES.—The Secretary or the Secretary
of the Treasury shall pay, from sums received as penalties, fines, or forfeitures
of property for any violation of this Act or any regulation issued hereunder (1) a
reward to any person who furnishes information which leads to an arrest, a criminal
conviction, civil penalty assessment, or forfeiture of property for any violation of
this Act or any regulation issued hereunder, and (2) the reasonable and necessary
costs incurred by any person in providing temporary care for any fish, wildlife, or
plant pending the disposition of any civil or criminal proceeding alleging a violation
of this Act with respect to that fish, wildlife, or plant. The amount of the reward, if
any, is to be designated by the Secretary or the Secretary of the Treasury, as appropriate.
Any officer or employee of the United States or any State or local government
who furnishes information or renders service in the performance of his official
duties is ineligible for payment under this subsection. Whenever the balance of sums
received under this section and section 6(d) of the Act of November 16, 1981 (16
U.S.C. 3375(d)), as penalties or fines, or from forfeitures of property, exceed $ 500,000,
the Secretary of the Treasury shall deposit an amount equal to such excess balance
in the cooperative endangered species conservation fund established under section
6(i) of this Act.
(e) ENFORCEMENT.—(1) The provisions of this Act and any regulations or permits
issued pursuant thereto shall be enforced by the Secretary, the Secretary of the
Treasury, or the Secretary of the Department in which the Coast Guard is operating,
or all such Secretaries. Each such Secretary may utilize by agreement, with or
without reimbursement, the personnel, services, and facilities of any other Federal
agency or any State agency for purposes of enforcing this Act.
(2) The judges of the district courts of the United States and the United States
magistrates may, within their respective jurisdictions, upon proper oath or affirmation
showing probable cause, issue such warrants or other process as may be required
for enforcement of this Act and any regulation issued thereunder.
(3) Any person authorized by the Secretary, the Secretary of the Treasury, or the
Secretary of the Department in which the Coast Guard is operating, to enforce this
Act may detain for inspection and inspect any package, crate, or other container,
including its contents, and all accompanying documents, upon importation or exportation.
Such person may make arrests without a warrant for any violation of this Act
if he has reasonable grounds to believe that the person to be arrested is committing
the violation in his presence or view, and may execute and serve any arrest warrant,
search warrant, or other warrant or civil or criminal process issued by any officer or
court of competent jurisdiction for enforcement of this Act. Such person so authorized
may search and seize, with or without a warrant, as authorized by law. Any
fish, wildlife, property, or item so seized shall be held by any person authorized by
the Secretary, the Secretary of the Treasury, or the Secretary of the Department in
which the Coast Guard is operating pending disposition of civil or criminal proceedings,
or the institution of an action in rem for forfeiture of such fish, wildlife, property,
or item pursuant to paragraph (4) of this subsection; except that the Secretary
may, in lieu of holding such fish, wildlife, property, or item, permit the owner or consignee to post a bond or other surety satisfactory to the Secretary, but upon forfeiture
of any such property to the United States, or the abandonment or waiver of any claim
to any such property, it shall be disposed of (other than by sale to the general public)
by the Secretary in such a manner, consistent with the purposes of this Act, as the
Secretary shall by regulation prescribe.
(4)(A) All fish or wildlife or plants taken, possessed, sold, purchased, offered for
sale or purchase, transported, delivered, received, carried, shipped, exported, or
imported contrary to the provisions of this Act, any regulation made pursuant thereto,
or any permit or certificate issued hereunder shall be subject to forfeiture to the
United States.
(B) All guns, traps, nets, and other equipment, vessels, vehicles, aircraft, and other
means of transportation used to aid the taking, possessing, selling, purchasing, offering
for sale or purchase, transporting, delivering, receiving, carrying, shipping,
exporting, or importing of any fish or wildlife or plants in violation of this Act, any
regulation made pursuant thereto, or any permit or certificate issued thereunder
shall be subject to forfeiture to the United States upon conviction of a criminal violation pursuant to section 11(b)(1) of this Act.
(5) All provisions of law relating to the seizure, forfeiture, and condemnation of a
vessel for violation of the customs laws, the disposition of such vessel or the proceeds
from the sale thereof, and the remission or mitigation of such forfeiture, shall apply
to the seizures and forfeitures incurred, or alleged to have been incurred, under the
provisions of this Act, insofar as such provisions of law are applicable and not inconsistent
with the provisions of this Act; except that all powers, rights, and duties
conferred or imposed by the customs laws upon any officer or employee of the Treasury
Department shall, for the purposes of this Act, be exercised or performed by
the Secretary or by such persons as he may designate.
(6) The Attorney General of the United States may seek to enjoin any person who
is alleged to be in violation of any provision of this Act or regulation issued under
authority thereof.
(f) REGULATIONS.—The Secretary, the Secretary of the Treasury, and the Secretary
of the Department in which the Coast Guard is operating, are authorized to
promulgate such regulations as may be appropriate to enforce this Act, and charge
reasonable fees for expenses to the Government connected with permits or certificates
authorized by this Act including processing applications and reasonable inspections,
and with the transfer, board, handling, or storage of fish or wildlife or
plants and evidentiary items seized and forfeited under this Act. All such fees collected
pursuant to this subsection shall be deposited in the Treasury to the credit of
the appropriation which is current and chargeable for the cost of furnishing the
services. Appropriated funds may be expended pending reimbursement from parties
in interest.
(g) CITIZEN SUITS.—(1) Except as provided in paragraph (2) of this subsection any
person may commence a civil suit on his own behalf—
(A) to enjoin any person, including the United States and any other governmental
instrumentality or agency (to the extent permitted by the eleventh amendment
to the Constitution), who is alleged to be in violation of any provision of this Act
or regulation issued under the authority thereof; or
(B) to compel the Secretary to apply, pursuant to section 6(g)(2)(B)(ii) of this
Act, the prohibitions set forth in or authorized pursuant to section 4(d) or section9(a)(1)(B) of this Act with respect to the taking of any resident endangered species
or threatened species within any State; or
(C) against the Secretary where there is alleged a failure of the Secretary to
perform any act or duty under section 4 which is not discretionary with the
Secretary.
The district courts shall have jurisdiction, without regard to the amount in controversy
or the citizenship of the parties, to enforce any such provision or regulation, or
to order the Secretary to perform such act or duty, as the case may be. In any civil
suit commenced under subparagraph (B) the district court shall compel the Secretary
to apply the prohibition sought if the court finds that the allegation that an
emergency exists is supported by substantial evidence.
(2)(A) No action may be commenced under subparagraph (1)(A) of this
section—
(i) prior to sixty days after written notice of the violation has been given to the
Secretary, and to any alleged violator of any such provision or regulation;
(ii) if the Secretary has commenced action to impose a penalty pursuant to
subsection (a) of this section; or
(iii) if the United States has commenced and is diligently prosecuting a criminal
action in a court of the United States or a State to redress a violation of any
such provision or regulation.
(B) No action may be commenced under subparagraph (1)(B) of this section—
(i) prior to sixty days after written notice has been given to the Secretary
setting forth the reasons why an emergency is thought to exist with respect to
an endangered species or a threatened species in the State concerned; or
(ii) if the Secretary has commenced and is diligently prosecuting action under
section 6(g)(2)(B)(ii) of this Act to determine whether any such emergency exists.
(C) No action may be commenced under subparagraph (1)(C) of this section prior
to sixty days after written notice has been given to the Secretary; except that such
action may be brought immediately after such notification in the case of an action
under this section respecting an emergency posing a significant risk to the wellbeing
of any species of fish or wildlife or plants.
(3)(A) Any suit under this subsection may be brought in the judicial district in
which the violation occurs.
(B) In any such suit under this subsection in which the United States is not a party,
the Attorney General, at the request of the Secretary, may intervene on behalf of
the United States as a matter of right.
(4) The court, in issuing any final order in any suit brought pursuant to paragraph
(1) of this subsection, may award costs of litigation (including reasonable attorney
and expert witness fees) to any party, whenever the court determines such award is
appropriate.
(5) The injunctive relief provided by this subsection shall not restrict any right
which any person (or class of persons) may have under any statute or common law
to seek enforcement of any standard or limitation or to seek any other relief (including
relief against the Secretary or a State agency).
(h) COORDINATION WITH OTHER LAWS.—The Secretary of Agriculture and the Secretary
shall provide for appropriate coordination of the administration of this Act
with the administration of the animal quarantine laws (as defined in section 2509(f)
of the Food, Agriculture, Conservation, and Trade Act of 1990 (21 U.S.C. 136a(f)) and section 306 of the Tariff Act of 1930 (19 U.S.C. 1306). Nothing in this Act or any amendment
made by this Act shall be construed as superseding or limiting in any manner
the functions of the Secretary of Agriculture under any other law relating to prohibited
or restricted importations or possession of animals and other articles and no proceeding
or determination under this Act shall preclude any proceeding or be considered
determinative of any issue of fact or law in any proceeding under any Act
administered by the Secretary of Agriculture. Nothing in this Act shall be construed
as superseding or limiting in any manner the functions and responsibilities of the
Secretary of the Treasury under the Tariff Act of 1930, including, without limitation,
section 527 of that Act (19 U.S.C. 1527), relating to the importation of wildlife taken,
killed, possessed, or exported to the United States in violation of the laws or regulations
of a foreign country.
|