S 118 IS

To strengthen the penalties for violations of plant quarantine laws.

To strengthen the penalties for violations of plant quarantine laws.

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

SECTION 1. SHORT TITLE.

This Act may be cited as the `Fruit, Vegetable, and Plant Smuggling Prevention Act of 2001'.

SEC. 2. DEFINITIONS.

In this Act:

(1) PLANT QUARANTINE LAW- The term `plant quarantine law' means any of the following provisions of law:

(A) Subsections (a) through (e) of section 102 of the Department of Agriculture Organic Act of 1944 (7 U.S.C. 147a).

(B) Section 1773 of the Food Security Act of 1985 (7 U.S.C. 148f).

(C) The Golden Nematode Act (7 U.S.C. 150 et seq.).

(D) The Federal Plant Pest Act (7 U.S.C. 150aa et seq.).

(E) The Joint Resolution of April 6, 1937 (56 Stat. 57, chapter 69; 7 U.S.C. 148 et seq.).

(F) The Act of January 31, 1942 (56 Stat. 40, chapter 31; 7 U.S.C. 149).

(G) The Act of August 20, 1912 (commonly known as the `Plant Quarantine Act') (37 Stat. 315, chapter 308; 7 U.S.C. 151 et seq.).

(H) The Halogeton Glomeratus Control Act (7 U.S.C. 1651 et seq.).

(I) The Act of August 28, 1950 (64 Stat. 561, chapter 815; 7 U.S.C. 2260).

(J) The Federal Noxious Weed Act of 1974 (7 U.S.C. 2801 et seq.), other than the first section and section 15 of that Act (7 U.S.C. 2801 note, 2814).

(2) SECRETARY- The term `Secretary' means the Secretary of Agriculture.

SEC. 3. PENALTIES FOR VIOLATION.

(a) CRIMINAL PENALTIES-

(1) IN GENERAL- A person that knowingly violates a plant quarantine law shall be subject to criminal penalties in accordance with this subsection.

(2) FELONIES-

(A) IN GENERAL- Subject to subparagraphs (B) and (C), a person shall be imprisoned not more than 5 years, fined not more than $25,000, or both, in the case of a violation of a plant quarantine law involving--

(i) plant pests;

(ii) more than 50 pounds of plants;

(iii) more than 5 pounds of plant products;

(iv) more than 50 pounds of noxious weeds;

(v) possession with intent to distribute or sell items described in clause (i), (ii), (iii), or (iv), knowing the items have been involved in a violation of a plant quarantine law; or

(vi) forging, counterfeiting, or without authority from the Secretary, using, altering, defacing, or destroying a certificate, permit, or other document provided under a plant quarantine law.

(B) MULTIPLE VIOLATIONS- On the second and any subsequent conviction of a person of a violation of a plant quarantine law described in subparagraph (A), the person shall be imprisoned not more than 10 years or fined not more than $50,000, or both.

(C) INTENT TO HARM AGRICULTURE OF UNITED STATES- In the case of a knowing movement in violation of a plant quarantine law by a person of a plant, plant product, biological control organism, plant pest, noxious weed, article, or means of conveyance into, out of, or within the United States, with the intent to harm the agriculture of the United States by introduction into the United States or dissemination of a plant pest or noxious weed within the United States, the person shall be imprisoned not less than 10 nor more than 20 years, fined not more than $500,000, or both.

(3) MISDEMEANORS-

(A) IN GENERAL- Subject to subparagraph (B), a person shall be imprisoned not more than 1 year, fined not more than $1,000, or both, in the case of a violation of a plant quarantine law involving--

(i) 50 pounds or less of plants;

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

(iii) 50 pounds or less of noxious weeds.

(B) MULTIPLE VIOLATIONS- On the second and any subsequent conviction of a person of a violation of a plant quarantine law described in subparagraph (A), the person shall be imprisoned not more than 3 years, fined not more than $10,000, or both.

(b) CRIMINAL FORFEITURE-

(1) IN GENERAL- In imposing a sentence on a person convicted of a violation of a plant quarantine law, in addition to any other penalty imposed under this section and irrespective of any provision of State law, a court shall order that the person forfeit to the United States--

(A) any of the property of the person used to commit or to facilitate the commission of the violation (other than a misdemeanor); and

(B) any property, real or personal, constituting, derived from, or traceable to any proceeds that the person obtained directly or indirectly as a result of the violation.

(2) PROCEDURES- All property subject to forfeiture under this subsection, any seizure and disposition of the property, and any proceeding relating to the forfeiture shall be subject to the procedures of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853), other than subsections (d) and (q).

(3) PROCEEDS- The proceeds from the sale of any forfeited property, and any funds forfeited, under this subsection shall be used--

(A) first, to reimburse the Department of Justice, the United States Postal Service, and the Department of the Treasury for any costs incurred by the Departments and the Service to initiate and complete the forfeiture proceeding;

(B) second, to reimburse the Office of Inspector General of the Department of Agriculture for any costs incurred by the Office in the law enforcement effort resulting in the forfeiture;

(C) third, to reimburse any Federal or State law enforcement agency for any costs incurred in the law enforcement effort resulting in the forfeiture; and

(D) fourth, by the Secretary to carry out the functions of the Secretary under a plant quarantine law.

(c) CIVIL PENALTIES-

(1) IN GENERAL- A person that violates a plant quarantine law, or that forges, counterfeits, or, without authority from the Secretary, uses, alters, defaces, or destroys a certificate, permit, or other document provided under a plant quarantine law may, after notice and opportunity for a hearing on the record, be assessed a civil penalty by the Secretary that does not exceed the greater of--

(A) $50,000 in the case of an individual (except that the civil penalty may not exceed $1,000 in the case of an initial violation of the plant quarantine law by an individual moving regulated articles not for monetary gain), or $250,000 in the case of any other person for each violation, except the amount of penalties assessed under this subparagraph in a single proceeding shall not exceed $500,000; or

(B) twice the gross gain or gross loss for a violation or forgery, counterfeiting, or unauthorized use, defacing or destruction of a certificate, permit, or other document provided for in the plant quarantine law that results in the person's deriving pecuniary gain or causing pecuniary loss to another person.

(2) FACTORS IN DETERMINING CIVIL PENALTY- In determining the amount of a civil penalty, the Secretary--

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

(B) may take into account the ability to pay, the effect on ability to continue to do business, any history of prior violations, the degree of culpability of the violator, and any other factors the Secretary considers appropriate.

(3) SETTLEMENT OF CIVIL PENALTIES- The Secretary may compromise, modify, or remit, with or without conditions, a civil penalty that may be assessed under this subsection.

(4) FINALITY OF ORDERS-

(A) IN GENERAL- An order of the Secretary assessing a civil penalty shall be treated as a final order reviewable under chapter 158 of title 28, United States Code.

(B) COLLECTION ACTION- The validity of an order of the Secretary may not be reviewed in an action to collect the civil penalty.

(C) INTEREST- A civil penalty not paid in full when due under an order assessing the civil penalty shall (after the due date) accrue interest until paid at the rate of interest applicable to a civil judgment of the courts of the United States.

(5) GUIDELINES FOR CIVIL PENALTIES- The Secretary shall coordinate with the Attorney General to establish guidelines to determine under what circumstances the Secretary may issue a civil penalty or suitable notice of warning in lieu of prosecution by the Attorney General of a violation of a plant quarantine law.

(d) CIVIL FORFEITURE-

(1) IN GENERAL- There shall be subject to forfeiture to the United States any property, real or personal--

(A) used to commit or to facilitate the commission of a violation (other than a misdemeanor) described in subsection (a); or

(B) constituting, derived from, or traceable to proceeds of a violation described in subsection (a).

(2) PROCEDURES-

(A) IN GENERAL- Subject to subparagraph (B), the procedures of chapter 46 of title 18, United States Code, relating to civil forfeitures shall apply to a seizure or forfeiture under this subsection, to the extent that the procedures are applicable and consistent with this subsection.

(B) PERFORMANCE OF DUTIES- Duties imposed on the Secretary of the Treasury under chapter 46 of title 18, United States Code, shall be performed with respect to seizures and forfeitures under this subsection by officers, employees, agents, and other persons designated by the Secretary of Agriculture.

(e) LIABILITY FOR ACTS OF AN AGENT- For the purposes of a plant quarantine law, the act, omission, or failure of an officer, agent, or person acting for or employed by any other person within the scope of employment or office of the officer, agent, or person, shall be considered to be the act, omission, or failure of the other person.