[Congressional Record Volume 147, Number 7 (Monday, January 22, 2001)]
[Senate]
[Pages S390-S392]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN:
  S. 118. A bill to strengthen the penalties for violations of plant 
quarantine laws; to the Committee on Agriculture, Nutrition, and 
Forestry.


      fruit, vegetable, and plant smuggling prevention act of 2001

  Mrs. FEINSTEIN. Mr. President, I rise today to introduce legislation 
to strengthen the penalties for organized smuggling of fruits, plants, 
and vegetables into the United States. A felony statute for agriculture 
product smuggling is needed to reflect the serious impact these crimes 
have on our farmers and the entire agriculture industry.
  Recent breaches of the agriculture safeguarding system have proven 
the need for strong criminal penalties for organized smuggling: 
multiple exotic fruit fly infestations have decimated California and 
Florida; the Asian longhorn beetle has been found in New

[[Page S391]]

York and Illinois; the Asian gypsy moth has been introduced in North 
Carolina and Oregon; and plum pox from Western Europe has devastated 
peach production in Pennsylvania.
  This widespread invasion of foreign species requires a strong federal 
response. The consequences of failing to adequately combat agriculture 
smuggling are clear.
  Until recently, a 72 square mile area of San Diego was under 
quarantine due to an infestation of Mexican Fruit Flies. The quarantine 
effected 1,470 growers of at least 20 specialty crops. The Department 
of Agriculture has encouraged California producers to grow specialty 
fruits and vegetables in an effort to reduce the risk of exotic pest 
introduction from smuggled fruit. Yet, no pre or post harvest treatment 
for many of these crops has been provided by the USDA. As a result of 2 
fruit flies, roughly 150 growers lost virtually their entire harvest--
estimated more than $3 million.


                      Problems with existing laws

  The current system that charges low fines and encourages few 
prosecutions is not a meaningful deterrent for violators. The USDA can 
assess a maximum fine of $1,000 for passenger and cargo violations. For 
an illegal shipper, this is simply a minor cost of doing business and 
not an effective deterrent.
  In addition, the lack of serious penalties for such crimes has 
resulted in a reduced number of criminal investigations, violators 
prosecuted, and sentences given to those convicted.
  The Office of the Inspector General (OIG) of the USDA, the law 
enforcement arm of the Department, has placed a low priority on 
agriculture smuggling violations because they are only misdemeanors and 
the OIG is forced to devote the bulk of its resources to felony 
violations. Of the 4,400 investigations completed since October 1, 
1994, fewer than 50 involved smuggling.
  The sentences given to the relatively few convicted smugglers is also 
effected by the attitude that this is not a serious crime.
  In the State of Washington, two people were caught smuggling 
agricultural products into the country on numerous occasions. Their 
third arrest came after 400 pounds of illegal and infested fruit was 
found in the walls of their station wagon. Despite their repeated 
crimes, the smugglers received only two days of jail time and a fine of 
$1,000.


                        penalties for violations

  This legislation would make it a felony to knowingly and willfully 
smuggle large amounts of agriculture products into the country. Persons 
caught smuggling foreign plant pests, more than 50 pounds of plants, 
more than 5 pounds of plant products, more than 50 pounds of noxious 
weeds, or possession with intent to distribute these products, would be 
punished with imprisonment for up to 5 years, a fine of as much as 
$25,000, or both. Repeat violators would face 10 years of jail time 
and/or a fine of $50,000.
  The legislation would also make smuggling lesser amounts of products 
a misdemeanor crime punishable by one year in jail and/or a $1,000 
fine. Subsequent violations would result in three years of jail time 
and/or a fine of $10,000.
  These penalties will provide law enforcement with the needed tools to 
investigate, arrest, and prosecute individuals and organizations 
engaged in the organized smuggling of agriculture products.


                          property forfeitures

  Another inadequacy in current law is the lack of a specific 
forfeiture provision for agriculture product smuggling. I have been 
told of cases at the San Diego border in which a person has been caught 
smuggling fruits or vegetables across the border. After receiving a 
slap on the wrist from the judicial system, his truck was returned to 
him, and he was allowed to return to his criminal occupation with the 
tools of his trade intact. It is astonishing to me that, not only is 
the government incapable of punishing illegal traffickers of 
agriculture products, but we are unable to take even modest steps to 
prevent recurrences of the same crime.
  According to this legislation, anyone convicted of violating the law 
would forfeit any property used to commit or facilitate the violation. 
They would also forfeit any money acquired through a violation of the 
law. The proceeds of the sale of forfeited property would be used to 
reimburse the costs of the prosecution. Any additional funds would go 
towards the USDA's interdiction efforts.
  I believe that Congress must send a message to our farmers and 
growers that the federal government is committed to protecting the 
agriculture sector from invasive species. We can do this by passing 
this legislation as quickly as possible.
  Mr. President, I ask unanimous consent that the bill be printed in 
the Congressional Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 118

       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

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     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.
                                 ______