II

107TH CONGRESS

1ST SESSION S. 118

To strengthen the penalties for violations of plant quarantine laws.

IN THE SENATE OF THE UNITED STATES

JANUARY 22, 2001

Mrs. FEINSTEIN introduced the following bill; which was read twice and

referred to the Committee on Agriculture, Nutrition, and Forestry

A BILL

To strengthen the penalties for violations of plant quarantine

laws.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Fruit, Vegetable, and

5 Plant Smuggling Prevention Act of 2001’’.

6 SEC. 2. DEFINITIONS.

7 In this Act:

8 (1) PLANT QUARANTINE LAW.—The term

9 ‘‘plant quarantine law’’ means any of the following

10 provisions of law:
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1 (A) Subsections (a) through (e) of section

2 102 of the Department of Agriculture Organic

3 Act of 1944 (7 U.S.C. 147a).

4 (B) Section 1773 of the Food Security Act

5 of 1985 (7 U.S.C. 148f).

6 (C) The Golden Nematode Act (7 U.S.C.

7 150 et seq.).

8 (D) The Federal Plant Pest Act (7 U.S.C.

9 150aa et seq.).

10 (E) The Joint Resolution of April 6, 1937

11 (56 Stat. 57, chapter 69; 7 U.S.C. 148 et seq.).

12 (F) The Act of January 31, 1942 (56

13 Stat. 40, chapter 31; 7 U.S.C. 149).

14 (G) The Act of August 20, 1912 (com15 monly known as the ‘‘Plant Quarantine Act’’)

16 (37 Stat. 315, chapter 308; 7 U.S.C. 151 et

17 seq.).

18 (H) The Halogeton Glomeratus Control

19 Act (7 U.S.C. 1651 et seq.).

20 (I) The Act of August 28, 1950 (64 Stat.

21 561, chapter 815; 7 U.S.C. 2260).

22 (J) The Federal Noxious Weed Act of

23 1974 (7 U.S.C. 2801 et seq.), other than the

24 first section and section 15 of that Act (7

25 U.S.C. 2801 note, 2814).
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1 (2) SECRETARY.—The term ‘‘Secretary’’ means

2 the Secretary of Agriculture.

3 SEC. 3. PENALTIES FOR VIOLATION.

4 (a) CRIMINAL PENALTIES.—

5 (1) IN GENERAL.—A person that knowingly vio6 lates a plant quarantine law shall be subject to

7 criminal penalties in accordance with this subsection.

8 (2) FELONIES.—

9 (A) IN GENERAL.—Subject to subpara10 graphs (B) and (C), a person shall be impris11 oned not more than 5 years, fined not more

12 than $25,000, or both, in the case of a violation

13 of a plant quarantine law involving—

14 (i) plant pests;

15 (ii) more than 50 pounds of plants;

16 (iii) more than 5 pounds of plant

17 products;

18 (iv) more than 50 pounds of noxious

19 weeds;

20 (v) possession with intent to distribute

21 or sell items described in clause (i), (ii),

22 (iii), or (iv), knowing the items have been

23 involved in a violation of a plant quar24 antine law; or
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1 (vi) forging, counterfeiting, or without

2 authority from the Secretary, using, alter3 ing, defacing, or destroying a certificate,

4 permit, or other document provided under

5 a plant quarantine law.

6 (B) MULTIPLE VIOLATIONS.—On the sec7 ond and any subsequent conviction of a person

8 of a violation of a plant quarantine law de9 scribed in subparagraph (A), the person shall

10 be imprisoned not more than 10 years or fined

11 not more than $50,000, or both.

12 (C) INTENT TO HARM AGRICULTURE OF

13 UNITED STATES.—In the case of a knowing

14 movement in violation of a plant quarantine law

15 by a person of a plant, plant product, biological

16 control organism, plant pest, noxious weed, arti17 cle, or means of conveyance into, out of, or

18 within the United States, with the intent to

19 harm the agriculture of the United States by

20 introduction into the United States or dissemi21 nation of a plant pest or noxious weed within

22 the United States, the person shall be impris23 oned not less than 10 nor more than 20 years,

24 fined not more than $500,000, or both.

25 (3) MISDEMEANORS.—
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1 (A) IN GENERAL.—Subject to subpara2 graph (B), a person shall be imprisoned not

3 more than 1 year, fined not more than $1,000,

4 or both, in the case of a violation of a plant

5 quarantine law involving—

6 (i) 50 pounds or less of plants;

7 (ii) 5 pounds or less of plant products;

8 or

9 (iii) 50 pounds or less of noxious

10 weeds.

11 (B) MULTIPLE VIOLATIONS.—On the sec12 ond and any subsequent conviction of a person

13 of a violation of a plant quarantine law de14 scribed in subparagraph (A), the person shall

15 be imprisoned not more than 3 years, fined not

16 more than $10,000, or both.

17 (b) CRIMINAL FORFEITURE.—

18 (1) IN GENERAL.—In imposing a sentence on a

19 person convicted of a violation of a plant quarantine

20 law, in addition to any other penalty imposed under

21 this section and irrespective of any provision of

22 State law, a court shall order that the person forfeit

23 to the United States—
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1 (A) any of the property of the person used

2 to commit or to facilitate the commission of the

3 violation (other than a misdemeanor); and

4 (B) any property, real or personal, consti5 tuting, derived from, or traceable to any pro6 ceeds that the person obtained directly or indi7 rectly as a result of the violation.

8 (2) PROCEDURES.—All property subject to for9 feiture under this subsection, any seizure and dis10 position of the property, and any proceeding relating

11 to the forfeiture shall be subject to the procedures

12 of section 413 of the Comprehensive Drug Abuse

13 Prevention and Control Act of 1970 (21 U.S.C.

14 853), other than subsections (d) and (q).

15 (3) PROCEEDS.—The proceeds from the sale of

16 any forfeited property, and any funds forfeited,

17 under this subsection shall be used—

18 (A) first, to reimburse the Department of

19 Justice, the United States Postal Service, and

20 the Department of the Treasury for any costs

21 incurred by the Departments and the Service to

22 initiate and complete the forfeiture proceeding;

23 (B) second, to reimburse the Office of In24 spector General of the Department of Agri25 culture for any costs incurred by the Office in
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1 the law enforcement effort resulting in the for2 feiture;

3 (C) third, to reimburse any Federal or

4 State law enforcement agency for any costs in5 curred in the law enforcement effort resulting

6 in the forfeiture; and

7 (D) fourth, by the Secretary to carry out

8 the functions of the Secretary under a plant

9 quarantine law.

10 (c) CIVIL PENALTIES.—

11 (1) IN GENERAL.—A person that violates a

12 plant quarantine law, or that forges, counterfeits, or,

13 without authority from the Secretary, uses, alters,

14 defaces, or destroys a certificate, permit, or other

15 document provided under a plant quarantine law

16 may, after notice and opportunity for a hearing on

17 the record, be assessed a civil penalty by the Sec18 retary that does not exceed the greater of—

19 (A) $50,000 in the case of an individual

20 (except that the civil penalty may not exceed

21 $1,000 in the case of an initial violation of the

22 plant quarantine law by an individual moving

23 regulated articles not for monetary gain), or

24 $250,000 in the case of any other person for

25 each violation, except the amount of penalties
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1 assessed under this subparagraph in a single

2 proceeding shall not exceed $500,000; or

3 (B) twice the gross gain or gross loss for

4 a violation or forgery, counterfeiting, or unau5 thorized use, defacing or destruction of a cer6 tificate, permit, or other document provided for

7 in the plant quarantine law that results in the

8 person’s deriving pecuniary gain or causing pe9 cuniary loss to another person.

10 (2) FACTORS IN DETERMINING CIVIL PEN11 ALTY.—In determining the amount of a civil penalty,

12 the Secretary—

13 (A) shall take into account the nature, cir14 cumstance, extent, and gravity of the violation;

15 and

16 (B) may take into account the ability to

17 pay, the effect on ability to continue to do busi18 ness, any history of prior violations, the degree

19 of culpability of the violator, and any other fac20 tors the Secretary considers appropriate.

21 (3) SETTLEMENT OF CIVIL PENALTIES.—The

22 Secretary may compromise, modify, or remit, with or

23 without conditions, a civil penalty that may be as24 sessed under this subsection.

25 (4) FINALITY OF ORDERS.—
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1 (A) IN GENERAL.—An order of the Sec2 retary assessing a civil penalty shall be treated

3 as a final order reviewable under chapter 158

4 of title 28, United States Code.

5 (B) COLLECTION ACTION.—The validity of

6 an order of the Secretary may not be reviewed

7 in an action to collect the civil penalty.

8 (C) INTEREST.—A civil penalty not paid in

9 full when due under an order assessing the civil

10 penalty shall (after the due date) accrue inter11 est until paid at the rate of interest applicable

12 to a civil judgment of the courts of the United

13 States.

14 (5) GUIDELINES FOR CIVIL PENALTIES.—The

15 Secretary shall coordinate with the Attorney General

16 to establish guidelines to determine under what cir17 cumstances the Secretary may issue a civil penalty

18 or suitable notice of warning in lieu of prosecution

19 by the Attorney General of a violation of a plant

20 quarantine law.

21 (d) CIVIL FORFEITURE.—

22 (1) IN GENERAL.—There shall be subject to

23 forfeiture to the United States any property, real or

24 personal—
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1 (A) used to commit or to facilitate the

2 commission of a violation (other than a mis3 demeanor) described in subsection (a); or

4 (B) constituting, derived from, or traceable

5 to proceeds of a violation described in sub6 section (a).

7 (2) PROCEDURES.—

8 (A) IN GENERAL.—Subject to subpara9 graph (B), the procedures of chapter 46 of title

10 18, United States Code, relating to civil forfeit11 ures shall apply to a seizure or forfeiture under

12 this subsection, to the extent that the proce13 dures are applicable and consistent with this

14 subsection.

15 (B) PERFORMANCE OF DUTIES.—Duties

16 imposed on the Secretary of the Treasury under

17 chapter 46 of title 18, United States Code, shall

18 be performed with respect to seizures and for19 feitures under this subsection by officers, em20 ployees, agents, and other persons designated

21 by the Secretary of Agriculture.

22 (e) LIABILITY FOR ACTS OF AN AGENT.—For the

23 purposes of a plant quarantine law, the act, omission, or

24 failure of an officer, agent, or person acting for or em25 ployed by any other person within the scope of employ-
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1 ment or office of the officer, agent, or person, shall be

2 considered to be the act, omission, or failure of the other

3 person.

Æ