§ 1540. — Penalties and 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: 16USC1540]
TITLE 16--CONSERVATION
CHAPTER 35--ENDANGERED SPECIES
Sec. 1540. Penalties and enforcement
(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 chapter, 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 1538 of this
title, 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 chapter 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 chapter, 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. The Secretary may
issue subpenas 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 subpena 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 chapter, 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 chapter,
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
1538 of this title 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 chapter 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 chapter 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 chapter 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 chapter, 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, shall have jurisdiction
over any actions arising under this chapter. For the purpose of this
chapter, 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 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 chapter 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 chapter or any regulation issued
hereunder. 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, 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 chapter
with respect to that fish, wildlife, or plant. Whenever the balance of
sums received under this section and section 3375(d) of this title, 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 1535(i) of this title.
(e) Enforcement
(1) The provisions of this chapter 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 chapter.
(2) The judges of the district courts of the United States and the
United States magistrate judges 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 chapter 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 chapter 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 chapter 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 chapter. 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 chapter, 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 chapter, 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
chapter, 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
subsection (b)(1) of this section.
(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 chapter, insofar as such provisions of law
are applicable and not inconsistent with the provisions of this chapter;
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 chapter, 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
chapter 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
chapter, and charge reasonable fees for expenses to the Government
connected with permits or certificates authorized by this chapter
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 chapter. 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 chapter or
regulation issued under the authority thereof; or
(B) to compel the Secretary to apply, pursuant to section
1535(g)(2)(B)(ii) of this title, the prohibitions set forth in or
authorized pursuant to section 1533(d) or 1538(a)(1)(B) of this
title 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 1533 of this
title 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 1535(g)(2)(B)(ii) of this title 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 well-being 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 chapter with the
administration of the animal quarantine laws (as defined in section
136a(f) of title 21) and section 306 \1\ of the Tariff Act of 1930 (19
U.S.C. 1306). Nothing in this chapter or any amendment made by this
chapter 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 chapter
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 chapter 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 [19 U.S.C.
1202 et seq.], 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.
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\1\ See References in Text note below.
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(Pub. L. 93-205, Sec. 11, Dec. 28, 1973, 87 Stat. 897; Pub. L. 94-359,
Sec. 4, July 12, 1976, 90 Stat. 913; Pub. L. 95-632, Secs. 6-8, Nov. 10,
1978, 92 Stat. 3761, 3762; Pub. L. 97-79, Sec. 9(e), Nov. 16, 1981, 95
Stat. 1079; Pub. L. 97-304, Secs. 7, 9(c), Oct. 13, 1982, 96 Stat. 1425,
1427; Pub. L. 98-327, Sec. 4, June 25, 1984, 98 Stat. 271; Pub. L. 100-
478, title I, Sec. 1007, Oct. 7, 1988, 102 Stat. 2309; Pub. L. 101-650,
title III, Sec. 321, Dec. 1, 1990, 104 Stat. 5117; Pub. L. 107-171,
title X, Sec. 10418(b)(3), May 13, 2002, 116 Stat. 508.)
References in Text
This chapter, referred to in subsecs. (a)(1), (3), (b)-(f),
(g)(1)(A), and (h), was in the original ``this Act'', meaning Pub. L.
93-205, Dec. 28, 1973, 81 Stat. 884, as amended, known as the
``Endangered Species Act of 1973'', which is classified principally to
this chapter. For complete classification of this Act to the Code, see
Short Title note set out under section 1531 of this title and Tables.
The customs laws, referred to in subsec. (e)(5), are classified
generally to Title 19, Customs Duties.
The amendments made by this chapter, referred to in subsec. (h),
refer to the amendments made by Pub. L. 93-205, which amended sections
460k-1, 460l-9, 668dd, 715i, 715s, 1362, 1371, 1372, and 1402 of this
title and section 136 of Title 7, Agriculture, and repealed sections
668aa to 668cc-6 of this title.
The Tariff Act of 1930, referred to in subsec. (h), is act June 17,
1930, ch. 497, 46 Stat. 590, as amended, which is classified generally
to chapter 4 (Sec. 1202 et seq.) of Title 19, Customs Duties. Section
306 of the Act was repealed by Pub. L. 107-171, title X,
Sec. 10418(a)(5), May 13, 2002, 116 Stat. 507. For complete
classification of this Act to the Code, see section 1654 of Title 19 and
Tables.
Amendments
2002--Subsec. (h). Pub. L. 107-171 substituted ``animal quarantine
laws (as defined in section 136a(f) of title 21)'' for ``animal
quarantine laws (21 U.S.C. 101-105, 111-135b, and 612-614)''.
1988--Subsec. (a)(1). Pub. L. 100-478, Sec. 1007(a), substituted
``$25,000'' for ``$10,000'' and ``$12,000'' for ``$5,000''.
Subsec. (b)(1). Pub. L. 100-478, Sec. 1007(b), substituted
``$50,000'' for ``$20,000'' and ``$25,000'' for ``$10,000''.
Subsec. (d). Pub. L. 100-478, Sec. 1007(c), inserted at end
``Whenever the balance of sums received under this section and section
3375(d) of this title, 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 1535(i) of this
title.''
1984--Subsec. (d). Pub. L. 98-327 substituted a comma for ``a
reward'' after ``shall pay'' in first sentence, inserted ``(1) a
reward'' before ``to any person'', and added cl. (2).
1982--Subsecs. (a)(1), (b)(1). Pub. L. 97-304, Sec. 9(c),
substituted ``(a)(2)(A), (B), (C), or (D)'' for ``(a)(2)(A), (B), or
(C)''.
Subsec. (e)(6). Pub. L. 97-304, Sec. 7(1), added par. (6).
Subsec. (g)(1)(B). Pub. L. 97-304, Sec. 7(2)(A)(i), substituted
``any State; or'' for ``any State.''.
Subsec. (g)(1)(C). Pub. L. 97-304, Sec. 7(2)(A)(ii), added subpar.
(C).
Subsec. (g)(1). Pub. L. 97-304, Sec. 7(2)(A)(iii), inserted ``or to
order the Secretary to perform such act or duty,'' after ``any such
provision or regulation,'' in provisions following subpar. (C).
Subsec. (g)(2)(C). Pub. L. 97-304, Sec. 7(2)(B), added subpar. (C).
1981--Pub. L. 97-79 substituted ``The Secretary or the Secretary of
the Treasury shall pay a reward from sums received as penalties, fines,
or forfeitures of property for any violation of this chapter or any
regulation issued hereunder 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 chapter
or any regulation issued hereunder'' for ``Upon the recommendation of
the Secretary, the Secretary of the Treasury is authorized to pay an
amount equal to one-half of the civil penalty or fine paid, but not to
exceed $2,500, to any person who furnishes information which leads to a
finding of civil violation or a conviction of a criminal violation of
any provision of this chapter or any regulation or permit issued
thereunder'' and inserted provision that the amount of the reward, if
any, be designated by the Secretary or the Secretary of the Treasury, as
appropriate.
1978--Subsec. (a)(1). Pub. L. 95-632, Sec. 6(1), (2), substituted
``and any person engaged in business as an importer or exporter of fish,
wildlife, or plants who violates'' for ``or who knowingly commits an act
in the course of a commercial activity which violates'' in two places
and ``$500'' for ``$1,000''.
Subsec. (a)(3). Pub. L. 95-632, Sec. 7, added par. (3).
Subsec. (b)(1). Pub. L. 95-632, Sec. 6(3), substituted ``knowingly''
for ``willfully commits an act which'' in two places.
Subsec. (b)(2). Pub. L. 95-632, Sec. 6(4), inserted ``a person to
import or export fish, wildlife, or plants, or to operate a quarantine
station for imported wildlife, or authorizing'' after ``authorizing''.
Subsec. (b)(3). Pub. L. 95-632, Sec. 8, added par. (3).
1976--Subsec. (e)(3). Pub. L. 94-359 inserted ``make arrests without
a warrant for any violation of this chapter if he has reasonable grounds
to believe that the person to be arrested is committing the violation in
his presence or view, and may'' after ``Such person may'' and ``, 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 chapter, as the
Secretary shall by regulation prescribe,'' after ``other surety
satisfactory to the Secretary''.
Change of Name
``United States magistrate judges'' substituted for ``United States
magistrates'' in subsec. (e)(2) pursuant to section 321 of Pub. L. 101-
650, set out as a note under section 631 of Title 28, Judiciary and
Judicial Procedure.
Effective Date of 1981 Amendment
Section 9(f) of Pub. L. 97-79 provided that: ``The amendment
specified in subsection 9(e) of this Act [amending this section] shall
take effect beginning in fiscal year 1983.''
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.
For transfer of functions of the Secretary of Agriculture relating
to agricultural import and entry inspection activities under this
section 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.
Section Referred to in Other Sections
This section is referred to in sections 742l, 1536, 1539, 4224,
4912, 5305a of this title; title 6 section 231; title 28 section 524;
title 42 section 10601.
