Page:United States Statutes at Large Volume 103 Part 2.djvu/1003

 PUBLIC LAW 101-235—DEC. 15, 1989 103 STAT. 2013 "(B) shall provide for the imposition of a penalty only after an issuer or a custodian has been given notice of, and opportunity for, a hearing on the record; and (C) may provide for review by the Secretary of any determination or order, or interlocutory ruling, arising from a hearing. "(2) FINAL ORDERS.—I f no hearing is requested within 15 days of receipt of a notice of opportunity for hearing, the imposition of a penalty shall constitute a final and unappealable deter- mination. If the Secretary reviews the determination or order, the Secretary may affirm, modify, or reverse that determination or order. If the &cretanr does not review the determination or order within 90 days of the issuance of the determination or order, the determination or order shall be final. "(3) FACTORS IN DETERMINING AMOUNT OF PENALTY. — In deter- mining the amount of a penalty under subsection (a), consider- ation shall be given to such factors as the gravity of the offense, any history of prior offenses (including offenses occurring before enactment of this section), ability to pay the penalty, injury to the public, benefits received, deterrence of future violations, and such other factors as the Secretary may determine by regulations. (4) REVIEWABILITY OF IMPOSITION OF PENALTY. —The Sec- retary's determination or order imposing a penalty under subsection (a) shall not be subject to review, except as provided in subsection (d). "(d) JUDICIAL REVIEW OF AGENCY DETERMINATION. — "(1) IN GENERAL. — After exhausting all administrative rem- edies established by the Secretary under subsection (c)(D, an issuer or a custodian against which the Secretary has imposed a civil money penalty under subsection (a) may obtain a review of the penalty and such ancillary issues as may be addressed in the notice provided under subsection (c)(l)(A) in the appropriate court of appeals of the United States, by filing in such court, within 20 days after the entry of such order or determination, a written petition praying that the Secretary's order or deter- mination be modified or be set aside in whole or in part, "(2) OBJECTIONS NOT RAISED IN HEARING.— A court shall not consider any objection that was not raised in the hearing con- ducted pursuant to subsection (c)(1) unless a demonstration is made of extraordinary circumstances causing the failure to raise the objection. If any party demonstrates to the satisfaction of the court that additional evidence, which was not presented at such hearing, is material and that there were reasonable grounds for the failure to present such evidence at the hearing, the court shall remand the matter to the Secretary for consider- ation of such additional evidence. "(3) SCOPE OF REVIEW.—The decisions, findings, and deter- minations of the Secretary shall be reviewed pursuant to section 706 of title 5, United States Code. "(4) ORDER TO PAY PENALTY.— Notwithstanding any other provision of law, the court shall have the power in any such review to order payment of the penalty imposed by the Secretary. "(e) ACTION TO COLLECT PENALTY. — If any issuer or custodian fails to comply with the Secretary's determination or order imposing a civil money penalty under subsection (a), after the determination or

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