‘‘SEC. 35. REFUSAL OR WITHDRAWAL OF INSPECTION.
‘‘(a) IN GENERAL.—The Secretary may, for such pe-
riod or indefinitely as the Secretary considers necessary
to carry out this Act, refuse to provide, or withdraw, in-
spections under this Act with respect to any official estab-
lishment if the Secretary determines, after opportunity for
a hearing is accorded to the applicant for, or recipient of,
the service that the applicant or recipient, or any person
connected with the applicant or recipient, has repeatedly
failed to comply with this Act.
‘‘(b) INSPECTIONS PENDING REVIEW.—The Sec-
retary may direct that, pending opportunity for an expe-
dited hearing in the case of any refusal or withdrawal of
inspections and the final determination and order under
subsection (a) and any judicial review of the determination
and order, inspections shall be denied or suspended if the
Secretary considers the action necessary in the public in-
terest in order to protect the health or welfare of consum-
ers or to ensure the safe and effective performance of offi-
cial duties under this Act.
‘‘(c) JUDICIAL REVIEW.—
‘‘(1) IN
GENERAL.—The determination and
order of the Secretary with respect to refusal or
withdrawal of inspections under this section shall be
final and conclusive unless the applicant for, or re-
cipient of, inspections files an application for judicial
review not later than 30 days after the effective date
of the order.
‘‘(2) INSPECTIONS PENDING REVIEW.—Inspec-
tions shall be refused or withdrawn as of the effec-
tive date of the order pending any judicial review of
the order unless the Secretary or the Court of Ap-
peals directs otherwise.
‘‘(3) VENUE; RECORD.—Judicial review of the
order shall be—
‘‘(A) in the United States Court of Appeals
for the circuit in which the applicant for, or the
recipient of, inspections has the principal place
of business of the applicant or recipient or in
the United States Court of Appeals for the Dis-
trict of Columbia Circuit; and
‘‘(B) based on the record on which the de-
termination and order are based.
‘‘(4) PROCESS.—Section 204 of the Packers
and Stockyards Act, 1921 (7 U.S.C. 194), shall be
applicable to appeals taken under this section.
‘‘(d) ADDITIONAL AUTHORITY.—This section shall be
in addition to, and not derogate from, any provision of
this Act for refusal, withdrawal, or suspension of inspec-
tions under this Act.
‘‘SEC. 36. CIVIL PENALTIES.
‘‘(a) IN GENERAL.—
‘‘(1) ASSESSMENT.—A person who violates any
of sections 30 through 37, a regulation issued under
any of the sections, or an order issued under sub-
section (b) or (d) of section 34 may be assessed a
civil penalty by the Secretary of not more than
$100,000 for each day of violation.
‘‘(2) SEPARATE VIOLATION.—Each offense de-
scribed in paragraph (1) shall be considered to be a
separate violation.
‘‘(3) NOTICE
AND
OPPORTUNITY
FOR
HEAR-
ING.—No penalty may be assessed against a person
under this section unless the person is given notice
and an opportunity for a hearing on the record be-
fore the Secretary in accordance with sections 554
and 556 of title 5, United States Code.
‘‘(4) AMOUNT.—The amount of the civil penalty
shall be assessed by the Secretary by written order,
taking into account the gravity of the violation, the
degree of culpability, and any history of prior of-
fenses. The amount may be reviewed only as pro-
vided in subsection (b).
‘‘(b) REVIEW.—
‘‘(1) IN GENERAL.—A person against whom a
violation is found and a civil penalty assessed by
order of the Secretary under subsection (a) may ob-
tain review of the order in the United States Court
of Appeals for the circuit in which the party resides
or has a place of business or in the United States
Court of Appeals for the District of Columbia Cir-
cuit by filing a notice of appeal in the court not later
than 30 days after the date of the order and by si-
multaneously sending a copy of the notice by cer-
tified mail to the Secretary.
‘‘(2) RECORD.—The Secretary shall promptly
file in the court a certified copy of the record on
which the violation was found and the penalty as-
sessed.
‘‘(3) FINDINGS.—The findings of the Secretary
shall be set aside only if found to be unsupported by
substantial evidence on the record as a whole.
‘‘(c) CIVIL ACTION TO RECOVER ASSESSMENT.—
‘‘(1) IN GENERAL.—If a person fails to pay an
assessment of a civil penalty after the penalty has
become a final and unappealable order, or after the
appropriate Court of Appeals has entered final judg-
ment in favor of the Secretary, the Secretary shall
refer the matter to the Attorney General, who shall
institute a civil action to recover the amount as-
sessed in any appropriate district court of the Unit-
ed States.
‘‘(2) SCOPE OF REVIEW.—In a recovery action
under paragraph (1), the validity and appropriate-
ness of the order of the Secretary imposing the civil
penalty shall not be subject to review.
‘‘(d) DISPOSITION OF AMOUNTS.—All amounts col-
lected under this section shall be paid into the Treasury
of the United States.
‘‘(e) EQUITABLE RELIEF.—
‘‘(1) RELATIONSHIP
TO
OTHER
ACTIONS.—
Nothing in this Act requires the Secretary to report
for criminal prosecution, or for the institution of an
injunction or other proceeding, a violation of this
Act, if the Secretary believes that the public interest
will be adequately served by assessment of civil pen-
alties.
‘‘(2) MODIFICATION
OF
PENALTY.—The Sec-
retary may compromise, modify, or remit, with or
without conditions, any civil penalty assessed under
this section.
‘‘SEC. 37. WHISTLEBLOWER PROTECTION.
‘‘(a) IN GENERAL.—No person subject to this Act
may harass, prosecute, hold liable, or discriminate against
any employee or other person because the person—
‘‘(1) is assisting or demonstrating an intent to
assist in achieving compliance with any Federal or
State law (including a rule or regulation);
‘‘(2) is refusing to violate or assist in the viola-
tion of any Federal or State law (including a rule or
regulation); or
‘‘(3) has commenced, caused to be commenced,
or is about to commence a proceeding, has testified
or is about to testify at a proceeding, or has assisted
or participated or is about to assist or participate in
any manner in such a proceeding or in any other ac-
tion to carry out the functions or responsibilities of
any agency, office, or unit of the Department of Ag-
riculture.
‘‘(b) PROCEDURES
AND PENALTIES.—The proce-
dures and penalties applicable to prohibited acts under
subsection (a) shall be governed by the applicable provi-
sions of section 31105 of title 49, United States Code.
‘‘(c) BURDENS OF PROOF.—The legal burdens of
proof with respect to prohibited acts under subsection (a)
shall be governed by the applicable provisions of sections
1214 and 1221 of title 5, United States Code.’’.
Æ
HR 1423 IH——2
HR 1423 IH——3