§ 1437. — Enforcement.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC1437]
TITLE 16--CONSERVATION
CHAPTER 32--MARINE SANCTUARIES
Sec. 1437. Enforcement
(a) In general
The Secretary shall conduct such enforcement activities as are
necessary and reasonable to carry out this chapter.
(b) Powers of authorized officers
Any person who is authorized to enforce this chapter may--
(1) board, search, inspect, and seize any vessel suspected of
being used to violate this chapter or any regulation or permit
issued under this chapter and any equipment, stores, and cargo of
such vessel;
(2) seize wherever found any sanctuary resource taken or
retained in violation of this chapter or any regulation or permit
issued under this chapter;
(3) seize any evidence of a violation of this chapter or of any
regulation or permit issued under this chapter;
(4) execute any warrant or other process issued by any court of
competent jurisdiction;
(5) exercise any other lawful authority; and
(6) arrest any person, if there is reasonable cause to believe
that such person has committed an act prohibited by section 1436(3)
of this title.
(c) Criminal offenses
(1) Offenses
A person is guilty of an offense under this subsection if the
person commits any act prohibited by section 1436(3) of this title.
(2) Punishment
Any person that is guilty of an offense under this subsection--
(A) except as provided in subparagraph (B), shall be fined
under title 18, imprisoned for not more than 6 months, or both;
or
(B) in the case of a person who in the commission of such an
offense uses a dangerous weapon, engages in conduct that causes
bodily injury to any person authorized to enforce this chapter
or any person authorized to implement the provisions of this
chapter, or places any such person in fear of imminent bodily
injury, shall be fined under title 18, imprisoned for not more
than 10 years, or both.
(d) Civil penalties
(1) Civil penalty
Any person subject to the jurisdiction of the United States who
violates this chapter or any regulation or permit issued under this
chapter shall be liable to the United States for a civil penalty of
not more than $100,000 for each such violation, to be assessed by
the Secretary. Each day of a continuing violation shall constitute a
separate violation.
(2) Notice
No penalty shall be assessed under this subsection until after
the person charged has been given notice and an opportunity for a
hearing.
(3) In rem jurisdiction
A vessel used in violating this chapter or any regulation or
permit issued under this chapter shall be liable in rem for any
civil penalty assessed for such violation. Such penalty shall
constitute a maritime lien on the vessel and may be recovered in an
action in rem in the district court of the United States having
jurisdiction over the vessel.
(4) Review of civil penalty
Any person against whom a civil penalty is assessed under this
subsection may obtain review in the United States district court for
the appropriate district by filing a complaint in such court not
later than 30 days after the date of such order.
(5) Collection of penalties
If any person fails to pay an assessment of a civil penalty
under this section 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, 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.
(6) Compromise or other action by Secretary
The Secretary may compromise, modify, or remit, with or without
conditions, any civil penalty which is or may be imposed under this
section.
(e) Forfeiture
(1) In general
Any vessel (including the vessel's equipment, stores, and cargo)
and other item used, and any sanctuary resource taken or retained,
in any manner, in connection with or as a result of any violation of
this chapter or of any regulation or permit issued under this
chapter shall be subject to forfeiture to the United States pursuant
to a civil proceeding under this subsection. The proceeds from
forfeiture actions under this subsection shall constitute a separate
recovery in addition to any amounts recovered as civil penalties
under this section or as civil damages under section 1443 of this
title. None of those proceeds shall be subject to set-off.
(2) Application of the customs laws
The Secretary may exercise the authority of any United States
official granted by any relevant customs law relating to the
seizure, forfeiture, condemnation, disposition, remission, and
mitigation of property in enforcing this chapter.
(3) Disposal of sanctuary resources
Any sanctuary resource seized pursuant to this chapter may be
disposed of pursuant to an order of the appropriate court, or, if
perishable, in a manner prescribed by regulations promulgated by the
Secretary. Any proceeds from the sale of such sanctuary resource
shall for all purposes represent the sanctuary resource so disposed
of in any subsequent legal proceedings.
(4) Presumption
For the purposes of this section there is a rebuttable
presumption that all sanctuary resources found on board a vessel
that is used or seized in connection with a violation of this
chapter or of any regulation or permit issued under this chapter
were taken or retained in violation of this chapter or of a
regulation or permit issued under this chapter.
(f) Payment of storage, care, and other costs
(1) Expenditures
(A) Notwithstanding any other law, amounts received by the
United States as civil penalties, forfeitures of property, and costs
imposed under paragraph (2) shall be retained by the Secretary in
the manner provided for in section 9607(f)(1) of title 42.
(B) Amounts received under this section for forfeitures and
costs imposed under paragraph (2) shall be used to pay the
reasonable and necessary costs incurred by the Secretary to provide
temporary storage, care, maintenance, and disposal of any sanctuary
resource or other property seized in connection with a violation of
this chapter or any regulation or permit issued under this chapter.
(C) Amounts received under this section as civil penalties and
any amounts remaining after the operation of subparagraph (B) shall
be used, in order of priority, to--
(i) manage and improve the national marine sanctuary with
respect to which the violation occurred that resulted in the
penalty or forfeiture;
(ii) pay a reward to any person who furnishes information
leading to an assessment of a civil penalty, or to a forfeiture
of property, for a violation of this chapter or any regulation
or permit issued under this chapter; and
(iii) manage and improve any other national marine
sanctuary.
(2) Liability for costs
Any person assessed a civil penalty for a violation of this
chapter or of any regulation or permit issued under this chapter,
and any claimant in a forfeiture action brought for such a
violation, shall be liable for the reasonable costs incurred by the
Secretary in storage, care, and maintenance of any sanctuary
resource or other property seized in connection with the violation.
(g) Subpoenas
In the case of any hearing under this section which is determined on
the record in accordance with the procedures provided for under section
554 of title 5, the Secretary may issue subpoenas for the attendance and
testimony of witnesses and the production of relevant papers, books,
electronic files, and documents, and may administer oaths.
(h) Use of resources of State and other Federal agencies
The Secretary shall, whenever appropriate, use by agreement the
personnel, services, and facilities of State and other Federal
departments, agencies, and instrumentalities, on a reimbursable or
nonreimbursable basis, to carry out the Secretary's responsibilities
under this section.
(i) Coast Guard authority not limited
Nothing in this section shall be considered to limit the authority
of the Coast Guard to enforce this or any other Federal law under
section 89 of title 14.
(j) Injunctive relief
If the Secretary determines that there is an imminent risk of
destruction or loss of or injury to a sanctuary resource, or that there
has been actual destruction or loss of, or injury to, a sanctuary
resource which may give rise to liability under section 1443 of this
title, the Attorney General, upon request of the Secretary, shall seek
to obtain such relief as may be necessary to abate such risk or actual
destruction, loss, or injury, or to restore or replace the sanctuary
resource, or both. The district courts of the United States shall have
jurisdiction in such a case to order such relief as the public interest
and the equities of the case may require.
(k) Area of application and enforceability
The area of application and enforceability of this chapter includes
the territorial sea of the United States, as described in Presidential
Proclamation 5928 of December 27, 1988, which is subject to the
sovereignty of the United States, and the United States exclusive
economic zone, consistent with international law.
(l) Nationwide service of process
In any action by the United States under this chapter, process may
be served in any district where the defendant is found, resides,
transacts business, or has appointed an agent for the service of
process.
(Pub. L. 92-532, title III, Sec. 307, as added Pub. L. 98-498, title I,
Sec. 102, Oct. 19, 1984, 98 Stat. 2302; amended Pub. L. 100-627, title
II, Sec. 207, Nov. 7, 1988, 102 Stat. 3219; Pub. L. 102-587, title II,
Sec. 2107(a)-(c), (e), Nov. 4, 1992, 106 Stat. 5043, 5044; Pub. L. 104-
283, Sec. 9(c), Oct. 11, 1996, 110 Stat. 3367; Pub. L. 106-513, Sec. 8,
Nov. 13, 2000, 114 Stat. 2387.)
References in Text
Presidential Proclamation 5928 of December 27, 1988, referred to in
subsec. (k), is set out as a note under section 1331 of Title 43, Public
Lands.
Amendments
2000--Subsec. (b)(6). Pub. L. 106-513, Sec. 8(a), added par. (6).
Subsecs. (c) to (f). Pub. L. 106-513, Sec. 8(b), added subsec. (c)
and redesignated former subsecs. (c) to (e) as (d) to (f), respectively.
Former subsec. (f) redesignated (g).
Subsec. (g). Pub. L. 106-513, Sec. 8(b), (c), redesignated subsec.
(f) as (g) and inserted ``electronic files,'' after ``books,''. Former
subsec. (g) redesignated (h).
Subsecs. (h) to (k). Pub. L. 106-513, Sec. 8(b), redesignated
subsecs. (g) to (j) as (h) to (k), respectively.
Subsec. (l). Pub. L. 106-513, Sec. 8(c), added subsec. (l).
1996--Subsec. (e)(1)(A). Pub. L. 104-283 made technical amendment to
reference in original act which appears in text as reference to section
9607(f)(1) of title 42.
1992--Subsec. (c)(1). Pub. L. 102-587, Sec. 2107(a)(1), substituted
``$100,000'' for ``$50,000''.
Subsec. (c)(3). Pub. L. 102-587, Sec. 2107(a)(2), struck out ``and
may be proceeded against in any district court of the United States
having jurisdiction'' after ``assessed for such violation'' and inserted
at end ``Such penalty shall constitute a maritime lien on the vessel and
may be recovered in an action in rem in the district court of the United
States having jurisdiction over the vessel.''
Subsec. (d)(1). Pub. L. 102-587, Sec. 2107(b), inserted at end ``The
proceeds from forfeiture actions under this subsection shall constitute
a separate recovery in addition to any amounts recovered as civil
penalties under this section or as civil damages under section 1443 of
this title. None of those proceeds shall be subject to set-off.''
Subsec. (e)(1). Pub. L. 102-587, Sec. 2107(c), added par. (1) and
struck out former par. (1) which read as follows: ``In general.--
Notwithstanding any other law, the Secretary may use amounts received
under this section in the form of civil penalties, forfeitures of
property, and costs imposed under paragraph (2) to pay--
``(A) the reasonable and necessary costs incurred by the
Secretary in providing temporary storage, care, and maintenance of
any sanctuary resource or other property seized under this section
pending disposition of any civil proceeding relating to any alleged
violation with respect to which such property or sanctuary resource
was seized; and
``(B) a reward to any person who furnishes information leading
to an assessment of a civil penalty, or to a forfeiture of property,
for a violation of this chapter or of any regulation or permit
issued under this chapter.''
Subsec. (j). Pub. L. 102-587, Sec. 2107(e), added subsec. (j).
1988--Pub. L. 100-627 amended section generally, substituting
provisions consisting of subsecs. (a) to (i) relating to enforcement
activities in general, powers of authorized officers, civil penalties,
forfeiture, payment of storage, care, and other costs, subpoenas, use of
resources of State and other Federal agencies, Coast Guard authority,
and injunctive relief for former provisions consisting of subsecs. (a)
to (c) relating to enforcement activities in general, civil penalties,
and jurisdiction.
Transfer of Functions
For transfer of authorities, functions, personnel, and assets of the
Coast Guard, including the authorities and functions of the Secretary of
Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections 468(b), 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.
Study of Joint Enforcement of Marine Sanctuary Regulations
Pub. L. 102-241, Sec. 51, Dec. 19, 1991, 105 Stat. 2227, directed
Secretary of Transportation and Secretary of Commerce, not later than
one year after Dec. 19, 1991, to submit to Congress a joint report
describing methods by which Coast Guard enforcement efforts under the
Marine Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C. 1431
et seq., 1447 et seq., 33 U.S.C. 1401 et seq., 2801 et seq.) could be
enhanced and coordinated with those of the National Oceanic and
Atmospheric Administration.
Section Referred to in Other Sections
This section is referred to in section 1441 of this title.
