APPENDIX 1-ENFORCEMENT AND PENALTY LANGUAGE Section 8. Penalties and Enforcement (a) CIVIL PENALTIES.-(1) Any person who knowingly violates, and any person engaged in business as an importer of exotic birds 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), (2), (3), (4), or (c) of section 6 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 of exotic birds 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 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 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 and may by regulation permit discovery and summary disposition as authorized under the Federal Rules of Civil Procedure. 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. (b) CRIMINAL VIOLATIONS.-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), (2), (3), (4), (b), or (c) of section 6 of this Act, shall upon conviction, be fined in accordance with section 3571 of title 18, United States Code, 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 in accordance with section 3571 of title 18, United States Code, or imprisoned for not more than six months, or both. (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 action arising under this chapter. The venue provisions of title 18 and title 28, United States Code, shall apply to 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 for Hawaii and the Trust Territory of Palau shall be included within the Judicial District of the District Court of the United States for the District of Guam. (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 issue 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 exotic bird, pending the disposition of any civil or criminal proceeding alleging a violation of this Act with respect to that bird. 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 or her official duties is ineligible for payment under this subsection. (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 use 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, on importation. Such person may make arrests without a warrant for any violation of this Act if that person has reasonable grounds to believe that the person to be arrested is committing the violation in his presence of 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 jurisdic tion for enforcement of this Act. Such person so authorized may search and seize, with or without a warrant, as authorized by law. Any exotic bird, 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 for an action in rem of forfeiture of such exotic bird, property, or item pursuant to paragraph (4) of this subsection; except that the Secretary may, in lieu of holding such exotic bird, 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 by the Secretary in such a manner, consistent with the purposes of this Act, as the Secretary shall by regulation prescribe. (4)(A) Notwithstanding any culpability requirements for civil penalty assessment criminal prosecution, any exotic bird, taken contrary to the provisions of this Act, or born during captivity to birds seized and forfeited under 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 importing of any exotic bird in violation of this Act, any regulation made pursuant thereto, or any permit of certificate issued thereunder shall be subject to forfeiture to the United States upon conviction of a criminal violation pursuant to section 8(b) 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 or forfeitures incurred, of alleged to have been incurred, under the provision 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 the Secretary's designee. (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. |