Text: H.R.6075 — 111th Congress (2009-2010)All Information (Except Text)

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Introduced in House (07/30/2010)


111th CONGRESS
2d Session
H. R. 6075


To amend the Magnuson-Stevens Fishery Conservation and Management Act to require payment of costs, fees, and expenses incurred by certain prevailing parties in proceedings under such Act from sums received as fines, penalties, and forfeitures, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES

July 30, 2010

Mr. Tierney (for himself, Mr. Frank of Massachusetts, Mr. Kucinich, Mr. Delahunt, Mr. Jones, and Mr. Courtney) introduced the following bill; which was referred to the Committee on Natural Resources


A BILL

To amend the Magnuson-Stevens Fishery Conservation and Management Act to require payment of costs, fees, and expenses incurred by certain prevailing parties in proceedings under such Act from sums received as fines, penalties, and forfeitures, and for other purposes.

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 “Ensuring Fairness for Fishermen Act”.

SEC. 2. Payment of costs, fees, and expenses incurred by certain prevailing parties.

(a) Use of sums received as fines, penalties, and forfeitures.—Section 311(e) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1861(e)) is amended—

(1) by redesignating paragraph (2) as paragraph (3) and moving such paragraph 2 ems to the left, so that the left margin of such paragraph is aligned with the left margin of such section; and

(2) by inserting after paragraph (1) the following new paragraph:

“(2)(A) Payment shall be made from the sums described in paragraph (1) in the case of any amount awarded—

“(i) under section 504 of title 5, United States Code, to a prevailing party other than the United States in an adjudication by the Secretary under section 308 of this Act, notwithstanding any provision to the contrary in such section 504;

“(ii) under section 2412 of title 28, United States Code, to a prevailing party other than the United States—

“(I) in a civil action for review of action by the Secretary in an adjudication under section 308 of this Act, notwithstanding any provision to the contrary in such section 2412; or

“(II) in a civil forfeiture action under section 310 of this Act, notwithstanding any provision to the contrary in such section 2412; and

“(iii) under subsection (d) of section 309 of this Act to a defendant who is a substantially prevailing party in a criminal action under such section.

“(B) If the sums described in paragraph (1) available to the Secretary or the Secretary of the Treasury on the date of the award of an amount described in subparagraph (A) are not sufficient to pay the full amount awarded, payment shall be made under such subparagraph to the extent of the availability of such sums, and the remainder of the amount shall be paid—

“(i) in the case of an award described in clause (i), (ii)(I), or (ii)(II) of such subparagraph, as provided under section 504 of title 5 or section 2412 of title 28, United States Code, as the case may be, without regard to this paragraph; or

“(ii) in the case of an award described in clause (iii) of such subparagraph, out of any general appropriation for payment of judgments against the United States.”.

(b) Attorney fees of substantially prevailing criminal defendants.—Section 309 of such Act (16 U.S.C. 1859) is amended by adding at the end the following new subsection:

“(d) Attorney fees of substantially prevailing defendants.—A defendant who is a substantially prevailing party in a criminal action under this section may be awarded reasonable attorney fees.”.

SEC. 3. Certain uses of sums received as fines, penalties, and forfeitures no longer authorized.

(a) In general.—Section 311(e)(1) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1861(e)(1)) is amended—

(1) by striking subparagraph (B);

(2) by striking subparagraph (C); and

(3) by striking subparagraph (F).

(b) Conforming amendments.—Such section is further amended—

(1) in subparagraph (D)—

(A) by adding “and” at the end; and

(B) by redesignating such subparagraph as subparagraph (B); and

(2) in subparagraph (E)—

(A) by striking “; and” and inserting a period;

(B) by redesignating such subparagraph as subparagraph (C); and

(C) by moving such subparagraph 2 ems to the left, so that the left margin of such subparagraph is aligned with the left margin of subparagraph (B), as redesignated by paragraph (1)(B).

SEC. 4. Effective date.

(a) In general.—Except as otherwise provided, the amendments made by this Act take effect on the date of the enactment of this Act.

(b) Attorney fees of substantially prevailing criminal defendants.—

(1) IN GENERAL.—The amendment made by section 2(b) applies with respect to criminal actions brought on or after the date of the enactment of this Act.

(2) PAYMENT IN CASE OF PRE-ENACTMENT CRIMINAL ACTIONS BROUGHT AFTER ESTABLISHMENT OF ASSET FORFEITURE FUND.—

(A) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Commerce shall establish a process for making payments from the amount set aside under subparagraph (B) of reasonable attorney fees to defendants who are substantially prevailing parties in criminal actions brought under section 309 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1859) during the period beginning on November 28, 1990, and ending on the day before the date of the enactment of this Act. Such process shall—

(i) require application by a defendant seeking such a payment; and

(ii) provide for the proration of such payments if the amount so set aside is insufficient to provide for payment of all such fees for all such defendants.

(B) FUNDS SET ASIDE.—Not later than 180 days after the date of the enactment of this Act, from the sums described in section 311(e)(1) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1861(e)(1)) that the Secretary of Commerce determines are available, the Secretary shall set aside an amount the Secretary considers fair and appropriate to be used for payments under this paragraph.

(c) Certain uses of sums received as fines, penalties, and forfeitures no longer authorized.—

(1) REWARDS FOR PROVISION OF INFORMATION.—The amendment made by section 3(a)(1) does not apply to payment of rewards for information that was provided before the date of the enactment of this Act.

(2) INVESTIGATION AND ENFORCEMENT EXPENSES.—The amendment made by section 3(a)(2) does not apply to payment of expenses incurred before the date of the enactment of this Act.

(3) REIMBURSEMENT TO FEDERAL AND STATE AGENCIES.—The amendment made by section 3(a)(3) does not apply to payment of reimbursements under agreements entered into before the date of the enactment of this Act.