16 U.S.C. § 1858

Civil penalties and permit sanctions

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(a) Assessment of penalty

Any person who is found by the Secretary, after notice and an opportunity for a hearing in accordance with section 554 of title 5, to have committed an act prohibited by section 1857 or section 1870 of this title shall be liable to the United States for a civil penalty. The amount of the civil penalty shall not exceed $100,000 for each violation. Each day of a continuing violation shall constitute a separate offense. The amount of such civil penalty shall be assessed by the Secretary, or his designee, by written notice. In determining the amount of such penalty, the Secretary shall take into account the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offenses, and such other matters as justice may require. In assessing such penalty the Secretary may also consider any information provided by the violator relating to the ability of the violator to pay, Provided, That the information is served on the Secretary at least 30 days prior to an administrative hearing.

(b) Review of civil penalty

Any person against whom a civil penalty is assessed under subsection (a) or against whom a permit sanction is imposed under subsection (g) (other than a permit suspension for nonpayment of penalty or fine) may obtain review thereof in the United States district court for the appropriate district by filing a complaint against the Secretary in such court within 30 days from the date of such order. 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. The findings and order of the Secretary shall be set aside by such court if they are not found to be supported by substantial evidence, as provided in section 706(2) of title 5.

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 shall refer the matter to the Attorney General of the United States, 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.

(d) In rem jurisdiction

A fishing vessel (including its fishing gear, furniture, appurtenances, stores, and cargo) used in the commission of an act prohibited by section 1857 of this title shall be liable in rem for any civil penalty assessed for such violation under this section and may be proceeded against in any district court of the United States having jurisdiction thereof. Such penalty shall constitute a maritime lien on such vessel which may be recovered in an action in rem in the district court of the United States having jurisdiction over the vessel.

(e) Compromise or other action by Secretary

The Secretary may compromise, modify, or remit, with or without conditions, any civil penalty which is subject to imposition or which has been imposed under this section.

(f) Subpenas

For the purposes of conducting any hearing under this section, the Secretary may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and 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 contempt or refusal to obey a subpena served upon any person pursuant to this subsection, 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 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.

(g) Permit sanctions(1) In any case in which (A) a vessel has been used in the commission of an act prohibited under section 1857 of this title, (B) the owner or operator of a vessel or any other person who has been issued or has applied for a permit under this chapter has acted in violation of section 1857 of this title, (C) any amount in settlement of a civil forfeiture imposed on a vessel or other property, or any civil penalty or criminal fine imposed on a vessel or owner or operator of a vessel or any other person who has been issued or has applied for a permit under any marine resource law enforced by the Secretary has not been paid and is overdue, or (D) any payment required for observer services provided to or contracted by an owner or operator who has been issued a permit or applied for a permit under any marine resource law administered by the Secretary has not been paid and is overdue, the Secretary may—(i) revoke any permit issued with respect to such vessel or person, with or without prejudice to the issuance of subsequent permits;(ii) suspend such permit for a period of time considered by the Secretary to be appropriate;(iii) deny such permit; or(iv) impose additional conditions and restrictions on any permit issued to or applied for by such vessel or person under this chapter and, with respect to foreign fishing vessels, on the approved application of the foreign nation involved and on any permit issued under that application.(2) In imposing a sanction under this subsection, the Secretary shall take into account—(A) the nature, circumstances, extent, and gravity of the prohibited acts for which the sanction is imposed; and(B) with respect to the violator, the degree of culpability, any history of prior offenses, and such other matters as justice may require.(3) Transfer of ownership of a vessel, by sale or otherwise, shall not extinguish any permit sanction that is in effect or is pending at the time of transfer of ownership. Before executing the transfer of ownership of a vessel, by sale or otherwise, the owner shall disclose in writing to the prospective transferee the existence of any permit sanction that will be in effect or pending with respect to the vessel at the time of the transfer.(4) In the case of any permit that is suspended under this subsection for nonpayment of a civil penalty or criminal fine, the Secretary shall reinstate the permit upon payment of the penalty or fine and interest thereon at the prevailing rate.(5) No sanctions shall be imposed under this subsection unless there has been a prior opportunity for a hearing on the facts underlying the violation for which the sanction is imposed, either in conjunction with a civil penalty proceeding under this section or otherwise.(Pub. L. 94–265, title III, § 308, Apr. 13, 1976, 90 Stat. 356; Pub. L. 97–453, § 10, Jan. 12, 1983, 96 Stat. 2491; Pub. L. 99–659, title I, § 108, Nov. 14, 1986, 100 Stat. 3713; Pub. L. 101–627, title I, § 114(a), Nov. 28, 1990, 104 Stat. 4454; Pub. L. 104–297, title I, § 114(a)–(c), Oct. 11, 1996, 110 Stat. 3598, 3599; Pub. L. 116–340, § 3(b), (e)(2), Jan. 13, 2021, 134 Stat. 5129.)Amendment of Subsection (a)

Pub. L. 116–340, § 3(e), Jan. 13, 2021, 134 Stat. 5129, provided in part that, effective five years after Jan. 13, 2021, subsection (a) of this section is amended by striking “or section 1870” after “section 1857”.

Editorial NotesReferences in Text

This chapter, referred to in subsec. (g)(1), was in the original “this Act”, meaning Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, known as the Magnuson-Stevens Fishery Conservation and Management Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Amendments

2021—Subsec. (a). Pub. L. 116–340, § 3(e)(2), struck out “or section 1870” after “section 1857”.

Pub. L. 116–340, § 3(b), inserted “or section 1870” after “section 1857”.

1996—Subsec. (a). Pub. L. 104–297, § 114(a), struck out “ability to pay,” after “history of prior offenses,” and inserted at end “In assessing such penalty the Secretary may also consider any information provided by the violator relating to the ability of the violator to pay, Provided, That the information is served on the Secretary at least 30 days prior to an administrative hearing.”

Subsec. (b). Pub. L. 104–297, § 114(b), amended first sentence generally. Prior to amendment, first sentence read as follows: “Any person against whom a civil penalty is assessed under subsection (a) of this section may obtain review thereof in the United States district court for the appropriate district by filing a complaint in such court within 30 days from the date of such order and by simultaneously serving a copy of such complaint by certified mail on the Secretary, the Attorney General and the appropriate United States Attorney.”

Subsec. (g)(1). Pub. L. 104–297, § 114(c), substituted “(C) any amount in settlement of a civil forfeiture imposed on a vessel or other property, or any civil penalty or criminal fine imposed on a vessel or owner or operator of a vessel or any other person who has been issued or has applied for a permit under any marine resource law enforced by the Secretary has not been paid and is overdue, or (D) any payment required for observer services provided to or contracted by an owner or operator who has been issued a permit or applied for a permit under any marine resource law administered by the Secretary has not been paid and is overdue,” for “or (C) any civil penalty or criminal fine imposed on a vessel or owner or operator of a vessel or any other person who has been issued or has applied for a permit under any fishery resource law statute enforced by the Secretary has not been paid and is overdue,”.

1990—Pub. L. 101–627, § 114(a)(1), inserted “and permit sanctions” after “penalties” in section catchline.

Subsec. (a). Pub. L. 101–627, § 114(a)(2), substituted “$100,000” for “$25,000”.

Subsec. (g). Pub. L. 101–627, § 114(a)(3), added subsec. (g).

1986—Subsec. (b). Pub. L. 99–659, § 108(1), amended first sentence generally. Prior to amendment, the sentence read as follows: “Any person against whom a civil penalty is assessed under subsection (a) of this section may obtain review thereof in the appropriate court of the United States by filing a notice of appeal in such court within 30 days from the date of such order and by simultaneously sending a copy of such notice by certified mail to the Secretary”.

Subsecs. (d) to (f). Pub. L. 99–659, § 108(2), (3), added subsec. (d) and redesignated former subsecs. (d) and (e) as (e) and (f), respectively.

1983—Subsec. (e). Pub. L. 97–453 added subsec. (e).

Statutory Notes and Related SubsidiariesEffective and Termination Dates of 2021 Amendment

Pub. L. 116–340, § 3(c), Jan. 13, 2021, 134 Stat. 5129, provided that: “The amendments made by this Act [enacting section 1870 of this title and amending this section] shall take effect 1 year after the date of the enactment of this Act [Jan. 13, 2021].”

Pub. L. 116–340, § 3(e), Jan. 13, 2021, 134 Stat. 5129, provided in part that the amendment made by section 3(e)(2) is effective five years after Jan. 13, 2021.

Effective Date

Section effective Mar. 1, 1977, see section 312 of Pub. L. 94–265, formerly set out as a note under section 1857 of this title.

Notes of Decisions

Cited in 38 cases (3 in the last 5 years), 1980–2023 · leading case: Gonzalez v. United States Dep't of Com., Nat'l Oceanic & Atmospheric Admin., 695 F. Supp. 2d 474 (S.D. Tex. 2010).

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Gonzalez v. United States Dep't of Com., Nat'l Oceanic & Atmospheric Admin., 695 F. Supp. 2d 474 (S.D. Tex. 2010). · cites it 30× “(citing 16 U.S.C. § 1858 (g); 15 C.F.R. §§ 904.301 , 904.”

The Fishing Co. of Alaska v. United States, 195 F. Supp. 2d 1239 (W.D. Wash. 2002). · cites it 7× “Therefore, this Court has jurisdiction to review both the regulations and the penalties under the Administrative Procedures Act (“APA”).”

Duckworth v. United States Ex Rel. Locke, 705 F. Supp. 2d 30 (D.D.C. 2010). · cites it 4× “See 16 U.S.C. § 1858 (b) (“The findings and order of the Secretary shall be aside by such court if they are not found to be supported by substantial evidence, as provided in section 706(2) of [the APA].”

Yates v. United States, 135 S. Ct. 1074 (2015). “See 16 U.S.C. § 1858 (a). Yates was tried on the criminal charges in August 2011.”

Duckworth v. US EX REL. LOCKE, 808 F. Supp. 2d 210 (D.D.C. 2011). · cites it 3× “The Administrator’s ruling constituted the final agency action. B. Procedural Background This Court reviewed the Administrator’s decision to determine whether it was supported by substantial evidence pursuant to 16 U.”

Diehl v. Franklin, 826 F. Supp. 874 (D.N.J. 1993). · cites it 8× “This is an action under 16 U.S.C. § 1858 (b) for review of a $10,000 civil penalty imposed on plaintiff Roy R.”

Lobsters, Inc. v. Evans, 346 F. Supp. 2d 340 (D. Mass. 2004). · cites it 4× “16 U.S.C. § 1858 (b); 5 U.S.C. 706(2). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Pac. Ranger, LLC v. Pritzker, 211 F. Supp. 3d 196 (D.D.C. 2016). “108 (a) (listing factors such as “the nature, circumstances, extent, and gravity of the alleged violation[,] the respondent’s degree of culpability, any history of prior violations, and ability to pay” as considerations when a penalty is assessed); see also 16 U.S.C. § 1858 (a)…”

Duckworth v. United States, 418 F. App'x 2 (D.C. Cir. 2011). · cites it 2× “This case, however, involves a civil penalty authorized by the Magnuson-Stevens Act and its regulations, see 16 U.S.C. § 1858 (a); 15 C.F.R. § 6.4 (f)(14) (2007), rather than a punitive damages jury award, thus rendering the Exxon 1:1 ratio rule inapplicable.”

Oceana, Inc. v. Gutierrez, Carlos, 488 F.3d 1020 (D.C. Cir. 2007). “Captains and crewmembers can be fined up to $100,000 for each violation, see 16 U.S.C. § 1858 (a), and may be criminally prosecuted, see id.”

Gonzalez v. United States Dep't of Com. Nat'l Oceanic & Atmospheric Admin., 632 F. Supp. 2d 642 (S.D. Tex. 2009). · cites it 10× “Plaintiffs contend that to the extent that one person (in this case, Karen Raines) has the discretion to issue permit sanctions, absent any judicial review, this violates the separation of *648 powers between the executive and the judicial branches, making 16 U.S.C. § 1858 of…”

Relentless Inc. v. US Dep't of Com., 62 F.4th 621 (1st Cir. 2023). “" 16 U.S.C. § 1858 (g)(1)(D). This penalty would make no sense if Congress did not anticipate that owners and/or operators of the vessels would be paying the observers.”

N. Wind, Inc. v. Daley, 200 F.3d 13 (1st Cir. 1999). “The decision upheld a civil penalty assessed against Northern Wind pursuant to 16 U.S.C. § 1858 , and a finding by an Administrative Law Judge (“ALJ”) that Northern Wind was liable for the possession of nonconforming Atlantic sea scallops under the Magnuson-Stevens Fishery…”

Roche v. Evans, 249 F. Supp. 2d 47 (D. Mass. 2003). · cites it 3× “By this action, authorized by 16 U.S.C. § 1858 (b), 1 Roche seeks *50 review of the imposition of the civil penalty.”

A.M.L. Int'l, Inc. v. Daley, 107 F. Supp. 2d 90 (D. Mass. 2000). “See 16 U.S.C. § 1858 (a)(1). Where the Secretary has designated a fishery as overfished, measures must provide for rebuilding to a level consistent with producing the maximum sustainable yield, or suitable proxy, within a time period as short as possible but not exceeding ten…”

Lovgren v. Byrne, 787 F.2d 857 (3rd Cir. 1986). · cites it 2× “16 U.S.C. § 1858 (a). The amount of the penalty is assessed by the Secretary by reference to the “nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offenses, [and]…”

Tutein v. Daley, 43 F. Supp. 2d 113 (D. Mass. 1999). “16 U.S.C. § 1858 (a) & (b). Section 1855(f)(2) also authorizes judicial review of actions taken by the Secretary "under regulations which implement a fishery management plan.”

Frontier Fishing Crop. v. Evans, 429 F. Supp. 2d 316 (D. Mass. 2006). · cites it 4× “] On June 2, 2004, Frontier Fishing filed this action against the Secretary of the Department of Commerce and the Under Secretary for Oceans and Atmosphere seeking review pursuant to 16 U.S.C. § 1858 (b). NOAA has filed and served a five-volume Administrative Record.”

United States v. Daiei Maru No. 2, 562 F. Supp. 34 (D. Alaska 1982). · cites it 2× “The major remedies include civil penalties assessed against a person by the Secretary of Commerce or his designee after notice and hearing in an amount not to exceed $25,000 for each violation, 16 U.S.C. § 1858 (a); criminal punishment of persons guilty of violations by a fine…”

Black v. Pritzker, 121 F. Supp. 3d 63 (D.D.C. 2015). · cites it 3× “:The owners and operators of all six vessels, the F/V American Triumph, the F/V Sea- Quest',' the F/V Ocean Quest, the F/V Ocean Encounter, the F/V Sea Honor, and the F/V Pacific Ranger, bring the instant action for judicial review of the final decisions of the Secretary'…”

Nichiro Gyogyo Kaisha, Ltd. v. Baldrige, 594 F. Supp. 80 (D.D.C. 1984). “Under 16 U.S.C. § 1858 (a) fines in the amount of $25,000 per violation are authorized, with each day of noncompliance constituting a separate violation.”

Nat. Res. Def. Council, Inc. v. United States, 2018 CIT 100 (Ct. Intl. Trade 2018). “Compare 16 U.S.C. § 1858 (a) (providing for civil penalties of up to $100,000 for each violation) with 16 U.”

Gonzalez v. Us Dept. of Com. Nat. Oceanic, 632 F. Supp. 2d 642 (S.D. Tex. 2009). · cites it 10× “Plaintiffs contend that to the extent that one person (in this case, Karen Raines) has the discretion to issue permit sanctions, absent any judicial review, this violates the separation of *648 powers between the executive and the judicial branches, making 16 U.S.C. § 1858 of…”

United States v. F/V Alice Amanda, 987 F.2d 1078 (4th Cir. 1993). “The Act provides that violations may be punished by a civil penalty up to $25,000 per violation, 16 U.S.C. § 1858 (a), or by forfeiture of the catch, its fair market value, or the fishing vessel.”

H & L Axelsson, Inc. v. Pritzker, 16 F. Supp. 3d 353 (D.N.J. 2014). · cites it 5× “, Dan Axelsson and Lars Axelsson (collectively, *356 “Plaintiffs” or “the Axelssons”) bring this action to reverse and vacate the assessment of fines and penalties against them by the National Oceanographic and Atmospheric Administration (“NOAA”), pursuant to 16 U.S.C. § 1858…”

United States v. Washington, 88 F. Supp. 3d 1203 (D. Wash. 2015). “See 16 U.S.C. §§ 1858—1855. Pursuant to the Act, in 1986, the National Oceanic and Atmospheric Administration (“NOAA”) adopted western boundaries for the Quinault and Quileute ocean fishing areas for the purpose of describing Subarea 2A-1, the tribal area for halibut fishing.”

Key Bank v. Concepion, 847 F. Supp. 844 (W.D. Wash. 1994). · cites it 15× “Following Alaska Command’s default on its promissory note, the Government invoked the permit sanction remedy provided in 16 U.S.C. § 1858 . The Government notified Alaska Command'and Key Bank that the vessel’s fishing permits would remain suspended until the promissory note was…”

Salisbury v. United States, 368 F. App'x 310 (3rd Cir. 2010). · cites it 2× “Van Salisbury brought an action in the District Court under 16 U.S.C. § 1858 (b) for judicial review; the District Court affirmed the assessment on cross motions for summary judgment.”

Gonzalez v. United States Dep't of Com. Nat'l Oceanic & Atmospheric Admin., 420 F. App'x 364 (5th Cir. 2011). “16 U.S.C. § 1858 (a). That statute previously stated that the agency “shall” take into account the ability to pay, but it has since been amended to specifically state that an agency “may” consider ability to pay — it is not required to do so.”

Duckworth v. the United States of Am. (D.D.C. 2011). · cites it 3× “The Administrator’s ruling constituted the final agency action. B. Procedural Background This Court reviewed the Administrator’s decision to determine whether it was supported by substantial evidence pursuant to 16 U.”

Frontier Fishing Corp. v. Pritzker, 770 F.3d 58 (1st Cir. 2014). “Standard of Review The Magnuson-Stevens Act incorporates the standard of review from the Administrative Procedure Act (APA), and thus we look for substantial evidence to support the agency’s final decision.”

Duckworth v. the United States of Am. (D.D.C. 2010). · cites it 2× “See 16 U.S.C. § 1858 (b) (“The findings and order of the Secretary shall be aside by such court if they are not found to be supported by substantial evidence, as provided in section 706(2) of [the APA].”

Loper Bright Enter., Inc. v. Wilbur L. Ross, Jr. (D.D.C. 2021). “” 16 U.S.C. § 1858 (g)(1) (emphasis added).”

Relentless Inc v. U.S. Dep't of Com. (D.R.I. 2021). “Finally, 16 U.S.C. § 1858 (g)(1)(D) allows the Secretary to sanction any vessel owner who has not made “any payment required for observer services provided to or contracted by an owner or operator.”

Goethel et al v Penny Pritzker et al, 2016 DNH 127 (D.N.H. 2016). “16 U.S.C. § 1858 (g)(1)(D) allows the Secretary to issue sanctions against any vessel owner or operator who has not made “any payment required for observer services provided to or contracted by an owner or operator .”

Duckworth v. the United States of Am. (D.D.C. 2009). “§703 , and the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1858 and 1861, provide a statutory basis for venue in New Jersey because neither “preclude[s]” it.”

Litigating Auth. of the Reg'l Fishery Mgmt. Councils (OLC 1980). “In enacting the FCMA, Congress considered—and rejected—a statutory scheme that would have permitted the Councils to challenge before an administrative body the Secretary’s final decision. Congress knows how to draft a statute that would allow an agency to challenge a final order…”

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