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From Title 46—SHIPPING CHAPTER 43—RECREATIONAL
VESSELS Sec. 4301. Application. 4302. Regulations. 4303. Inspection and
testing. 4304. Importation of
nonconforming vessels and equipment. 4305. Exemptions and
equivalents. 4306. Federal
preemption. 4307. Prohibited acts. 4308. Termination of
unsafe operation. 4309. Investigation and
reporting. 4310. Repair and
replacement of defects. 4311. Penalties and
injunctions. 4312. Engine cut-off
switches. Historical
and Revision Notes Chapter 43 contains the laws applicable to recreational
vessels, which originated primarily with the enactment of the Federal Boat
Safety Act of 1971 (Public Law 92–75, 85 Stat. 213). That Act embraced a
number of activities, but the portion restated in this chapter deals with the
establishment of national construction and performance standards for
recreational vessels and their associated equipment, the necessary flexible
regulatory authority for inspection and testing, Federal preemption, certain
necessary prohibited acts, enforcement authority, investigation and reporting
requirements, procedures for repair and defect notification, and attendant
penalties and injunctive relief. These laws are a direct response to the
dramatic increase in the number of recreational boats and the Congressional
recognition of the maritime safety problems that recreational boating has
imposed upon our more than 25 million miles of waterways. Editorial
Notes Amendments 2021—Pub. L. 116–283, div. G,
title LVXXXIII [LXXXIII], §8318(b), Jan. 1, 2021, 134 Stat. 4700,
substituted "Exemptions and equivalents" for "Exemptions"
in item 4305. 2018—Pub. L. 115–282, title V,
§503(b), Dec. 4, 2018, 132 Stat. 4271, added item 4312. §4301. Application (a) This chapter applies to a recreational
vessel and associated equipment carried in the vessel on waters subject to the
jurisdiction of the United States (including the territorial sea of the United
States as described in Presidential Proclamation No. 5928 of December 27, 1988)
and, for a vessel owned in the United States, on the high seas. (b) Except when expressly otherwise provided,
this chapter does not apply to a foreign vessel temporarily operating on waters
subject to the jurisdiction of the United States. (c) Until there is a final judicial decision
that they are navigable waters of the United States, the following waters lying
entirely in New Hampshire are declared not to be waters subject to the
jurisdiction of the United States within the meaning of this section: Lake
Winnisquam, Lake Winnipesaukee, parts of the Merrimack River, and their
tributary and connecting waters. (Pub. L. 98–89, Aug. 26,
1983, 97 Stat. 529; Pub. L. 105–383, title III,
§301(b)(4), Nov. 13, 1998, 112 Stat. 3417.)
Section 4301 provides that this chapter is applicable to a
recreational vessel that operates on waters subject to the jurisdiction of the
United States or that is owned in the United States and while operating on the
high seas. It also provides that a foreign recreational vessel that
temporarily uses our waters is not subject to the requirements of this chapter.
However, if the vessel remains permanently in the United States, it would be
subject to the provisions of this chapter. Section 4301(c) recognizes the ongoing controversy over the
navigability of certain waters of New Hampshire. While a recreational vessel
operating on these waters need not meet the requirements of this chapter, it
would be prohibited from operating on any other waters subject to the
jurisdiction of the United States if it does not comply with these
requirements. Editorial
Notes References
in Text Presidential Proclamation No. 5928, referred to in subsec. (a), is
set out under section 1331 of Title 43, Public Lands. Amendments 1998—Subsec. (a). Pub.
L. 105–383 inserted "(including the territorial sea of the United
States as described in Presidential Proclamation No. 5928 of December 27,
1988)" after "of the United States". Statutory
Notes and Related Subsidiaries Effective
Date Chapter effective Apr. 15, 1984, see section 2(g)(1) of Pub.
L. 98–89, set out as a note under section 3101 of this title. §4302. Regulations (a) The Secretary may
prescribe regulations— (1) establishing minimum safety standards for
recreational vessels and associated equipment, and establishing procedures and
tests required to measure conformance with those standards, with each standard— (A) meeting the need for recreational vessel
safety; and (B) being stated, insofar as practicable, in
terms of performance; (2) requiring the installation, carrying, or use
of associated equipment (including fuel systems, ventilation systems,
electrical systems, sound-producing devices, firefighting equipment, lifesaving
devices, signaling devices, ground tackle, life- and grab-rails, and
navigational equipment) on recreational vessels and classes of recreational
vessels subject to this chapter, and prohibiting the installation, carrying, or
use of associated equipment that does not conform with safety standards
established under this section; and (3) requiring or permitting the display of
seals, labels, plates, insignia, or other devices for certifying or evidencing
compliance with safety regulations and standards of the United States
Government for recreational vessels and associated equipment. (b) Each regulation
prescribed under this section shall specify an effective date that is not
earlier than 180 days from the date the regulation was published, unless the
Secretary finds that there exists a recreational vessel safety hazard so
critical as to require an earlier effective date. However, this period may not
be more than 24 months for cases involving, in the discretion of the Secretary,
major product design, retooling, or major changes in the manufacturing process. (c) In prescribing
regulations under this section, the Secretary shall, among other things— (1) consider the need for and the extent to
which the regulations will contribute to recreational vessel safety; (2) consider relevant available recreational
vessel safety standards, statistics, and data, including public and private
research, development, testing, and evaluation; (3) not compel substantial alteration of a
recreational vessel or item of associated equipment that is in existence, or
the construction or manufacture of which is begun before the effective date of
the regulation, but subject to that limitation may require compliance or
performance, to avoid a substantial risk of personal injury to the public, that
the Secretary considers appropriate in relation to the degree of hazard that
the compliance will correct; and (4)
consult with the National Boating Safety Advisory Committee established
under section 15105 of this title about the considerations referred
to in clauses (1)–(3) of this subsection.
(d) Section 8903 of
this title does not apply to a vessel being operated for bona fide dealer
demonstrations provided without fee to business invitees. However, if on the basis of substantial evidence, the Secretary decides
under this section that requiring vessels so operated to be under the control
of licensed individuals is necessary for boating safety, then the Secretary may
prescribe regulations requiring the licensing of individuals controlling these
vessels in the same manner as provided in chapter 89 of this title
for individuals in control of vessels carrying passengers for hire. (e)(1) Under this
section, a model year for recreational vessels and associated equipment shall,
except as provided in paragraph (2)— (A) begin on June 1 of a year and end on July 31
of the following year; and (B) be designated by the year in which it ends.
(2) Upon the request of a recreational vessel manufacturer to
which this chapter applies, the Secretary may alter a model year for a model of
recreational vessel of the manufacturer and associated equipment, by no more
than 6 months from the model year described in paragraph (1). (Pub. L. 98–89, Aug. 26,
1983, 97 Stat. 530; Pub. L. 114–120, title III,
§303(a), Feb. 8, 2016, 130 Stat. 53; Pub. L. 115–282, title VI,
§601(c)(4)(B)(i), Dec. 4, 2018, 132 Stat. 4290.)
Section 4302 authorizes the Secretary to prescribe regulations to
carry out the provisions of this chapter. In lieu of establishing specific
statutory safety requirements, subsection (a) provides flexible regulatory
authority to establish uniform standards for the design, construction,
materials, and performance of the boats themselves and all associated
equipment. It also provides for the display of seals and other devices for
certifying or evidencing compliance with applicable safety regulations or standards. Section 4302(b) requires a regulation prescribed under this
section to have an effective date that is not earlier than 180 days from
publication. However, in those instances where a safety hazard may be critical
an earlier effective date is authorized. Section 4302(c) requires the Secretary to consider certain
objectives in developing regulatory controls and regulations or standards and
that there must be an effective consultation process. Section 4302(d) exempts dealer demonstration boats from the
requirement of having to be named by a licensed individual when demonstrating
boats to prospective purchasers or other business invitees when no fees are
charged. The Secretary may require that boats so used be under control of a
licensed individual. Editorial
Notes Amendments 2018—Subsec. (c)(4). Pub. L. 115–282 substituted
"Committee established under section 15105 of this title" for
"Council established under section 13110 of this title". 2016—Subsec. (e). Pub. L. 114–120 added subsec. (e). Statutory
Notes and Related Subsidiaries Effective
Date of 2016 Amendment Pub. L. 114–120, title III,
§303(b), Feb. 8, 2016, 130 Stat. 53, provided that: "This
section [amending this section] shall only apply with respect to recreational
vessels and associated equipment constructed or manufactured, respectively, on
or after the date of enactment of this Act [Feb. 8, 2016]." Equipment
Requirements; Exemption From Throwable Personal Flotation Devices Requirement Pub. L. 115–282, title VIII,
§827, Dec. 4, 2018, 132 Stat. 4314, provided that: "Not
later than one year after the date of enactment of this Act [Dec. 4, 2018], the
Secretary of the department in which the Coast Guard is operating shall— "(1) prescribe
regulations in part 160 of title 46, Code of Federal Regulations, that treat a
marine throw bag, as that term is commonly used in the commercial whitewater
rafting industry, as a type of lifesaving equipment; and "(2) revise section
175.17 of title 33, Code of Federal Regulations, to exempt rafts that are 16
feet or more overall in length from the requirement to carry an additional
throwable personal flotation device when such a marine throw bag is onboard and
accessible." Visual
Distress Signals and Alternative Use Pub. L. 115–282, title VIII,
§828, Dec. 4, 2018, 132 Stat. 4314, provided that: "(a) In General.—The Secretary
of the department in which the Coast Guard is operating shall develop a
performance standard for the alternative use and possession of visual distress
alerting and locating signals as mandated by carriage requirements for
recreational boats in subpart C of part 175 of title 33, Code of Federal
Regulations. "(b) Regulations.—Not later
than 180 days after the performance standard for alternative use and possession
of visual distress alerting and locating signals is finalized, the Secretary
shall revise part 175 of title 33, Code of Federal Regulations, to allow for
carriage of such alternative signal devices." Large
Recreational Vessel Regulations Pub. L. 115–232, div. C, title
XXXV, §3529(a), Aug. 13, 2018, 132 Stat. 2318, provided that: "(a) In General.— "(1) Issuance.—The Secretary of the department in which the Coast
Guard is operating shall issue large recreational vessel regulations applicable
to any recreational vessel (as defined in section 2101 of title 46, United
States Code) over 300 gross tons as measured under section 14502 of such title,
or an alternate tonnage measured under section 14302 of such title as
prescribed by the Secretary under section 14104 of such title, that does not
carry any cargo or passengers for hire. "(2) Scope and
content of regulations.—The regulations issued under
this subsection— (A) subject to subparagraph (B), shall be
comparable to the code set forth in Merchant Shipping Notice 1851(M) (commonly
referred to as the 'Large Commercial Yacht Code (LY3)'), as published by the
Maritime and Coastguard Agency of the United Kingdom on August 20, 2013, or an
equivalent code, regulation, or standard that is acceptable to the Secretary;
and "(B) shall require that, as part of the
review of an application for documentation of a vessel that is subject to the
regulations, the owner shall disclose to the Coast Guard— "(i) the identification and place of
residence of such owner; and "(ii) if the owner is an entity described
in paragraph (2), (3), or (4) of section 12103(b) of title 46, United
States Code, the beneficial owners of such entity. "(3) Deadline.—The Secretary
shall issue regulations required by paragraph (1) by not later than one year
after the date of the enactment of this Act [Aug. 13, 2018]. "(4) Interim compliance.—Until the effective date of
regulations issued under paragraph (1), a recreational vessel described in
paragraph (1) shall not be subject to inspection under section 3301(7) of
title 46, United States Code, if the Secretary determines, as part of the
review of the application for documentation submitted for the vessel by the
owner of the vessel and other materials as considered necessary by the
Secretary, that the vessel complies with the code set forth in Merchant
Shipping Notice 1851(M) (commonly referred to as the 'Large Commercial Yacht
Code (LY3)'), as published by the Maritime and Coastguard Agency of the United
Kingdom on August 20, 2013, or an equivalent code, regulation, or standard that
is acceptable to the Secretary. "(5) Definitions.— "(A) Beneficial owner.—In
this subsection the term 'beneficial owner'— "(i) means, with respect to an entity, each
natural person who, directly or indirectly— "(I) exercises control over the entity through ownership
interests, voting rights, agreements, or otherwise; or "(II) has an interest in or receives
substantial economic benefits from the assets of the entity; and "(ii) does not include, with respect to an
entity— "(I)
a minor child; "(II) a person acting as a nominee,
intermediary, custodian, or agent on behalf of another person; "(III) a person acting solely as an
employee of the entity and whose control over or economic benefits from the
entity derives solely from the employment status of the person; "(IV) a person whose only interest in the entity is through a
right of inheritance, unless the person otherwise meets the definition of
'beneficial owner' under this subparagraph; and "(V) a creditor of the entity, unless the creditor otherwise
meets the requirements of 'beneficial owner' under this subparagraph. "(B) Owner.—In this subsection,
other than in subparagraph (A) of this paragraph, the term 'owner' means the
person who is the eligible owner of the vessel for purposes of section
12103(b) of title 46, United States Code." Availability
and Use of EPIRBs for Recreational Vessels Pub. L. 105–383, title III,
§309, Nov. 13, 1998, 112 Stat. 3422, provided that: "The
Secretary of Transportation, through the Coast Guard and in consultation with
the National Transportation Safety Board and recreational boating
organizations, shall, within 24 months of the date of the enactment of this Act
[Nov. 13, 1998], assess and report to Congress on the use of emergency position
indicating beacons (EPIRBs) and similar devices by operators of recreational
vessels on the Intracoastal Waterway and operators of recreational vessels
beyond the Boundary Line. The assessment shall at a minimum— "(1) evaluate the current availability and use of EPIRBs and
similar devices by the operators of recreational vessels and the actual and
potential contribution of such devices to recreational boating safety; and "(2) provide recommendations on policies and programs to
encourage the availability and use of EPIRBS [sic] and similar devices by the
operators of recreational vessels." §4303. Inspection and testing (a) Subject to regulations, supervision, and reviews that the
Secretary may prescribe, the Secretary may delegate to a person, private or
public agency, or organization, or to an officer or employee under the
supervision of that person or agency, any work, business, or function related
to the testing, inspection, and examination necessary for compliance
enforcement and for the development of data to enable the Secretary to
prescribe regulations under section 4302 of this title. (b) The Secretary may— (1) conduct research, testing, and development
necessary to carry out this chapter, including the procurement by negotiation
or otherwise of experimental and other recreational vessels or associated
equipment for research and testing purposes; and (2) subsequently sell those vessels. (Pub. L. 98–89, Aug. 26,
1983, 97 Stat. 531.)
Section 4303 authorizes the Secretary to
delegate to certain persons or agencies or organizations any work, business, or
function related to the testing, inspection, and examination necessary for
compliance enforcement. The Secretary may also conduct research, testing, and
development necessary to carry out this chapter, including procurement of
vessels and equipment and their subsequent sale. The Committee wishes to make
clear that the Secretary may sell anything that was purchased to test. §4304. Importation of nonconforming vessels and equipment The Secretary and the Secretary of the Treasury may authorize by
joint regulations the importation of any nonconforming recreational vessel or
associated equipment on conditions, including providing a bond, that will
ensure that the recreational vessel or associated equipment will be brought
into conformity with applicable safety regulations and standards of the
Government before the vessel or equipment is operated on waters subject to the
jurisdiction of the United States. (Pub. L. 98–89, Aug. 26,
1983, 97 Stat. 531.)
Section 4304 requires the regulation and control
of the importation of nonconforming recreational vessels and associated
equipment. This is to assure United States manufacturers that foreign imports comply with those regulations and standards
in effect for United States products so that all manufacturers will be on this
same competitive footing. This is being done in lieu of providing a specific
prohibition against the importation of these vessels and equipment that might
be considered an imposition of a non-tariff barrier to trade. §4305. Exemptions and equivalents (a) Exemptions.—If the Secretary
considers that recreational vessel safety will not be adversely affected, the
Secretary may issue an exemption from this chapter or a regulation prescribed
under this chapter. (b) Equivalents.—The Secretary may
accept a substitution for associated equipment performance or other safety
standards for a recreational vessel if the substitution provides an equivalent
level of safety. (Pub. L. 98–89, Aug. 26,
1983, 97 Stat. 531; Pub. L. 116–283, div. G, title
LVXXXIII [LXXXIII], §8318(a), Jan. 1, 2021, 134 Stat. 4700.)
Section 4305 permits the Secretary to grant
appropriate exemptions from the requirements of this chapter when recreational
vessel safety will not be adversely affected.
Editorial
Notes Amendments 2021—Pub. L. 116–283 substituted "Exemptions and
equivalents" for "Exemptions" in section catchline, designated
existing provisions as subsec. (a) and inserted heading, and added subsec. (b). §4306. Federal preemption Unless permitted by the Secretary under section 4305 of this
title, a State or political subdivision of a State may not establish, continue
in effect, or enforce a law or regulation establishing a recreational vessel or
associated equipment performance or other safety standard or imposing a
requirement for associated equipment (except insofar as the State or political
subdivision may, in the absence of the Secretary's disapproval, regulate the
carrying or use of marine safety articles to meet uniquely hazardous conditions
or circumstances within the State) that is not identical to a regulation
prescribed under section 4302 of this title. (Pub. L. 98–89, Aug. 26,
1983, 97 Stat. 531.)
Section 4306 establishes the Federal preemption
of recreational boating standards and requirements. A State or a political
subdivision may not establish, continue, or enforce a law or regulation
establishing a performance or other safety standard that is not identical to a
Federal standard. The Secretary may grant an exemption to a State when the
State requirement is one that is needed to meet uniquely hazardous conditions
or circumstances within a State. This is to provide uniform standards without
the imposition of excessive special requirements by individual States. §4307. Prohibited acts (a) A person may not— (1)
manufacture, construct, assemble, sell or offer for
sale, introduce or deliver for introduction into interstate commerce, or import
into the United States, a recreational vessel, associated equipment, or
component of the vessel or equipment unless— (A)(i) it conforms with this chapter or a
regulation prescribed under this chapter; and (ii) it does not contain a defect which has been identified, in
any communication to such person by the Secretary or the manufacturer of that
vessel, equipment or component, as creating a substantial risk of personal
injury to the public; or (B) it is intended only for export and is so labeled, tagged, or
marked on the recreational vessel or equipment, including any markings on the
outside of the container in which it is to be exported; (2) affix, attach, or display a seal, document,
label, plate, insignia, or other device indicating or suggesting compliance
with standards of the United States Government on, in, or in connection with, a
recreational vessel or item of associated equipment that is false or
misleading; or (3)
fail to provide a notification as required by this chapter or fail to exercise
reasonable diligence in carrying out the notification and reporting
requirements of this chapter.
(b) A person may not operate a vessel in violation of this chapter
or a regulation prescribed under this chapter. (Pub. L. 98–89, Aug. 26,
1983, 97 Stat. 531; Pub. L. 98–557, §8(a), Oct.
30, 1984, 98 Stat. 2862.)
Section 4307 prohibits certain acts in the
manufacture and operation of recreational vessels.
Editorial
Notes Amendments 1984—Subsec. (a)(1)(A). Pub. L. 98–557 designated existing
provisions as cl. (i), substituted "and" for "or", and
added cl. (ii). §4308. Termination of unsafe operation If an official charged with the enforcement of this chapter
observes a recreational vessel being operated without sufficient lifesaving or
firefighting devices or in an overloaded or other unsafe condition (as defined
in regulations prescribed under this chapter) and, in the judgment of the
official, the operation creates an especially hazardous condition, the official
may direct the individual in charge of the recreational vessel to take
immediate and reasonable steps necessary for the safety of individuals on board
the vessel, including directing the individual in charge to return to a mooring
and to remain there until the situation creating the hazard is corrected or
ended. (Pub. L. 98–89, Aug. 26,
1983, 97 Stat. 532; Pub. L. 99–307, §1(9), May 19,
1986, 100 Stat. 445.)
Section 4308 authorizes an appropriate official
to terminate the unsafe operation of recreational vessels. If the official
observes the vessel being operated without sufficient lifesaving or
firefighting devices or in an overloaded or other unsafe condition (as defined
in regulations) and believes the operation creates an especially hazardous
condition, the operator may be directed to take immediate and reasonable steps
necessary for safety, including returning to a mooring and remaining there
until the hazard is corrected or ended. This does not prevent the assessment of
any applicable civil penalties nor the pursuing of appropriate criminal action. Editorial
Notes Amendments 1986—Pub. L. 99–307 substituted "individual in charge"
for "operator" in two places. §4309. Investigation and reporting (a) A recreational vessel manufacturer to whom this chapter
applies shall establish and maintain records and reports and provide
information the Secretary may require to enable the Secretary to decide whether
the manufacturer has acted or is acting in compliance with this chapter and
regulations prescribed under this chapter. On request of an officer, employee,
or agent authorized by the Secretary, a recreational vessel manufacturer shall
permit the officer, employee, or agent to inspect, at reasonable times,
factories or other facilities, and records related to deciding whether the
manufacturer has acted or is acting in compliance with this chapter and
regulations prescribed under this chapter. (b) Information reported to or otherwise obtained by the Secretary
or the representative of the Secretary under this section containing or related
to a trade secret or other matter referred to in section 1905 of title 18,
or authorized to be exempt from public disclosure by section 552(b) of
title 5, is confidential under section 1905. However, on approval of the
Secretary, the information may be disclosed to other officers, employees, or
agents concerned with carrying out this chapter or when it is relevant in a
proceeding under this chapter. (Pub. L. 98–89, Aug. 26,
1983, 97 Stat. 532.)
Section 4309 requires the establishment and
maintenance of certain records by manufacturers, and the inspection and access
to these records by the Secretary, at reasonable times, so as
to assure Federal enforcement officials that the manufacturer has acted
or is in compliance with applicable laws and regulations. It also provides
protection for matters related to trade secrets and exemptions from public
disclosure. §4310. Repair and replacement of defects (a) In this section, "associated equipment" includes
only items or classes of associated equipment that the Secretary shall
prescribe by regulation after deciding that the application of the requirements
of this section to those items or classes of associated equipment is reasonable
and in furtherance of this chapter. (b) If a recreational vessel or associated equipment has left the
place of manufacture and the recreational vessel manufacturer discovers or
acquires information that the manufacturer decides, in the exercise of
reasonable and prudent judgment, indicates that a recreational vessel or
associated equipment subject to an applicable regulation prescribed
under section 4302 of this title either fails to comply with the
regulation, or contains a defect that creates a substantial risk of personal
injury to the public, the manufacturer shall provide notification of the defect
or failure of compliance as provided by subsections (c) and (d) of this section
within a reasonable time after the manufacturer has discovered the defect. (c)(1) The notification required by subsection (b) of this section
shall be given to the following persons in the following manner: (A) by first class mail or by certified mail to the first
purchaser for other than resale, except that the requirement for notification
of the first purchaser shall be satisfied if the recreational vessel
manufacturer exercises reasonable diligence in establishing and maintaining a
list of those purchasers and their current addresses, and sends the required
notice to each person on that list at the address appearing on the list. (B) by first class mail or by certified mail to subsequent
purchasers if known to the manufacturer. (C) by first class mail or by certified mail or other more
expeditious means to the dealers and distributors of the recreational vessels
or associated equipment.
(2) The notification required by subsection (b) of this section is
required to be given only for a defect or failure of compliance discovered by
the recreational vessel manufacturer within a reasonable time after the
manufacturer has discovered the defect or failure, except that the
manufacturer's duty of notification under paragraph (1)(A) and (B) of this
subsection applies only to a defect or failure of compliance discovered by the
manufacturer within one of the following appropriate periods: (A) if a recreational vessel or associated equipment required by
regulation to have a date of certification affixed, 10 years from the date of
certification. (B) if a recreational vessel or associated equipment not required
by regulation to have a date of certification affixed, 10 years from the date
of manufacture.
(d) The notification required by subsection (b) of this section
shall contain a clear description of the defect or failure to comply, an
evaluation of the hazard reasonably related to the defect or failure, a
statement of the measures to correct the defect or failure, and an undertaking
by the recreational vessel manufacturer to take those measures only at the
manufacturer's cost and expense. (e) Each recreational vessel manufacturer shall provide the
Secretary with a copy of all notices, bulletins, and other communications to
dealers and distributors of that manufacturer, and to purchasers of
recreational vessels or associated equipment of that manufacturer, about a
defect related to safety in the recreational vessels or associated equipment,
and any failure to comply with the regulation or order applicable to the
recreational vessels or associated equipment. The Secretary may publish or otherwise
disclose to the public information in the notices or other information the
Secretary has that the Secretary considers will assist in carrying out this
chapter. However, the Secretary may disclose any information that contains or
relates to a trade secret only if the Secretary decides that the information is
necessary to carry out this chapter. (f) If, through testing, inspection, investigation, or examination
of reports, the Secretary decides that a recreational vessel or associated
equipment to which this chapter applies contains a defect related to safety or
fails to comply with an applicable regulation prescribed under this chapter and
notification under this chapter is appropriate, the Secretary shall notify the
recreational vessel manufacturer of the defect or failure. The notice shall
contain the findings of the Secretary and shall include a synopsis of the
information on which they are based. The manufacturer may then provide the
notification required by this chapter to the persons designated in this chapter
or dispute the Secretary's decision. If disputed, the Secretary shall provide
the manufacturer with an opportunity to present views and establish that there
is no such defect or failure. When the Secretary considers it to be in the
public interest, the Secretary may publish notice of the proceeding in the
Federal Register and provide interested persons, including the National Boating
Safety Advisory Committee, with an opportunity to comment. If, after
presentation by the manufacturer, the Secretary decides that the recreational
vessel or associated equipment contains a defect related to safety or fails to
comply with an applicable regulation, the Secretary may direct the manufacturer
to provide the notifications specified in this chapter. (g) The Secretary may prescribe regulations to carry out this
section, including the establishment of procedures that require dealers and
distributors to assist manufacturers in obtaining information required by this
section. A regulation prescribed under this subsection does not relieve a
manufacturer of any obligation imposed by this section. (Pub. L. 98–89, Aug. 26,
1983, 97 Stat. 532; Pub. L. 107–295, title IV,
§433, Nov. 25, 2002, 116 Stat. 2129; Pub. L. 115–282, title VI,
§601(c)(4)(B)(ii), Dec. 4, 2018, 132 Stat. 4290.)
Section 4310 imposes certain requirements on a
recreational vessel and associated equipment manufacturer to provide
notification of a defect or the failure of compliance after a manufacturer
discovers the defect or failure. This section spells out the procedure for
notification and who shall be notified. It assures the public of notification
while protecting the manufacturer from the potential of damaging and inaccurate
disclosures.
Editorial
Notes Amendments 2018—Subsec. (f). Pub. L. 115–282 substituted "Advisory
Committee" for "Advisory Council". 2002—Subsec. (c)(1)(A) to (C). Pub. L. 107–295, §433(2),
inserted "by first class mail or" before "by certified
mail". Subsec. (c)(2)(A), (B). Pub. L.
107–295, §433(1), substituted "10" for "5". §4311. Penalties and injunctions (a) A person willfully operating a recreational vessel in
violation of this chapter or a regulation prescribed under this chapter shall
be fined not more than $5,000, imprisoned for not more than one year, or both. (b)(1) A person violating section 4307(a) of this
title is liable to the United States Government for a civil penalty of not
more than $5,000, except that the maximum civil penalty may be not more than
$250,000 for a related series of violations. (2) If the Secretary decides under section 4310(f) that a
recreational vessel or associated equipment contains a defect related to safety
or fails to comply with an applicable regulation and directs the manufacturer
to provide the notifications specified in this chapter, any person, including a
director, officer or executive employee of a
corporation, who knowingly and willfully fails to comply with that order, may
be fined not more than $10,000, imprisoned for not more than one year, or both. (3)
When a corporation violates section 4307(a), or fails to comply with the
Secretary's decision under section 4310(f), any director, officer, or executive
employee of the corporation who knowingly and willfully ordered, or knowingly
and willfully authorized, a violation is individually liable to the Government
for a penalty under paragraphs (1) or (2) in addition to the corporation.
However, the director, officer, or executive employee is not liable
individually under this subsection if the director, officer, or executive
employee can demonstrate by a preponderance of the evidence that— (A) the order or authorization was issued on the
basis of a decision, in exercising reasonable and prudent judgment, that
the defect or the nonconformity with standards and regulations constituting the
violation would not cause or constitute a substantial risk of personal injury
to the public; and (B) at the time of the order or authorization, the director,
officer, or executive employee advised the Secretary in writing of acting under
this subparagraph and subparagraph (A).
(c) A person violating section 4312(b) of this title is
liable to the United States Government for a civil penalty of not more than— (1)
$100 for the first offense; (2)
$250 for the second offense; and (3)
$500 for any subsequent offense.
(d) A person violating any other provision of this chapter or
other regulation prescribed under this chapter is liable to the Government for
a civil penalty of not more than $1,000. If the violation involves the
operation of a vessel, the vessel also is liable in rem for the penalty. (e) When a civil penalty of not more than $200 has been assessed
under this chapter, the Secretary may refer the matter of collection of the
penalty directly to the United States magistrate judge of the jurisdiction in
which the person liable may be found for collection procedures under
supervision of the district court and under an order issued by the court
delegating this authority under section 636(b) of title 28. (f) The district courts of the United States
have jurisdiction to restrain a violation of this chapter, or to restrain the
sale, offer for sale, introduction or delivery for
introduction into interstate commerce, or importation into the United States,
of a recreational vessel or associated equipment that the court decides does
not conform to safety standards of the Government. A civil action under this
subsection shall be brought by filing a petition by the Attorney General for
the Government. When practicable, the Secretary shall give notice to a person
against whom an action for injunctive relief is contemplated and provide the
person with an opportunity to present views and, except for a knowing and
willful violation, shall provide the person with a reasonable opportunity to
achieve compliance. The failure to give notice and provide the opportunity does
not preclude the granting of appropriate relief by the district court. (g) A person is not subject to a penalty under
this chapter if the person— (1)
establishes that the person did not have reason to know, in exercising
reasonable care, that a recreational vessel or associated equipment does not
conform with the applicable safety standards of the Government or that the
person was not advised by the Secretary or the manufacturer of that vessel,
equipment or component that the vessel, equipment or component contains a
defect which creates a substantial risk of personal injury to the public; or (2)
holds a certificate issued by the manufacturer of that recreational vessel or
associated equipment to the effect that the recreational vessel or associated
equipment conforms to all applicable recreational vessel safety standards of
the Government, unless the person knows or reasonably should have known that
the recreational vessel or associated equipment does not so conform. (h) Compliance with this chapter or standards, regulations, or
orders prescribed under this chapter does not relieve a person from liability
at common law or under State law. (Pub. L. 98–89, Aug. 26,
1983, 97 Stat. 534; Pub. L. 98–557, §8(b), (c),
Oct. 30, 1984, 98 Stat. 2862; Pub. L. 101–650, title III,
§321, Dec. 1, 1990, 104 Stat. 5117; Pub. L. 108–293, title IV,
§406, Aug. 9, 2004, 118 Stat. 1043; Pub. L. 109–241, title IX,
§901(e), July 11, 2006, 120 Stat. 564; Pub. L. 116–283, div. G, title
LVXXXIII [LXXXIII], §8316(b), Jan. 1, 2021, 134 Stat. 4699.)
Section 4311 provides penalties for violating
any of the provisions of this chapter or a regulation prescribed under this
chapter. For a willful violation the penalty is a criminal fine; all other
penalties are civil in nature. A person violating any of the prohibited acts
specified in section 4307(a)(1) is subject to a maximum civil penalty that can
go as high as a $100,000 for a related series of violations. However, the
section provides for no liability for good faith reliance on certifications of
compliance by others within the chain of responsibility and for defects that
are not within an individual's responsibility or control. This section also contains an alternate
procedure for the collection of a civil penalty of not more than $200 through a
U.S. magistrate in lieu of the civil penalty procedures of the Coast Guard. It
also directs the district courts of the United States to restrain the sale,
offer for sale, introduction or delivery for
introduction into interstate commerce, or importation of a recreational vessel
or associated equipment that does not conform to applicable safety standards.
Finally, compliance with this chapter or standards, regulations, or orders does
not relieve a person from liability at common law or under State law.
Editorial
Notes Amendments 2021—Subsecs. (c) to (h). Pub. L. 116–283 added subsec. (c)
and redesignated former subsecs. (c) to (g) as (d) to (h), respectively. 2006—Subsec. (b)(1). Pub. L. 109–241 inserted a space after
"4307(a)". 2004—Subsec. (b). Pub. L. 108–293 amended subsec. (b)
generally. Prior to amendment, subsec. (b) read as follows: "A person
violating section 4307(a)(1) of this title is liable to the United
States Government for a civil penalty of not more than $2,000, except that the
maximum civil penalty may be not more than $100,000 for a related series of
violations. When a corporation violates section 4307(a)(1), any director,
officer, or executive employee of the corporation who knowingly and willfully
ordered, or knowingly and willfully authorized, a violation is individually
liable to the Government for the penalty, in addition to the corporation.
However, the director, officer, or executive employee is not liable
individually under this subsection if the director, officer, or executive
employee can demonstrate by a preponderance of the evidence that— "(1) the order or authorization was issued on the basis of a
decision, in exercising reasonable and prudent judgment, that the defect or the
nonconformity with standards and regulations constituting the violation would
not cause or constitute a substantial risk of personal injury to the public;
and "(2) at the time of the order or authorization, the director,
officer, or executive employee advised the Secretary in writing of acting under
this clause and clause (1) of this subsection." 1984—Subsec. (b)(1). Pub. L. 98–557, §8(b), inserted
"defect or the" before "nonconformity". Subsec. (f)(1). Pub. L. 98–557, §8(c),
inserted provisions relating to advice by the Secretary or manufacturer of the
vessel, equipment or component respecting defects creating substantial risk of
personal injury to the public.
Statutory
Notes and Related Subsidiaries Change
of Name "United States magistrate judge"
substituted for "United States magistrate" in subsec. (d) pursuant to
section 321 of Pub. L. 101–650, set out as a note under section
631 of Title 28, Judiciary and Judicial Procedure. Effective
Date of 2021 Amendment Pub. L. 116–283, div. G, title
LVXXXIII [LXXXIII], §8316(c), Jan. 1, 2021, 134 Stat. 4700,
provided that: "The amendments made in subsections (a) and (b) [amending
this section and section 4312 of this title] shall take effect 90 days
after the date of the enactment of this section [Jan. 1, 2021], unless the
Commandant [of the Coast Guard], prior to the date that is 90 days after the
date of the enactment of this section, determines that the use requirement
enacted in subsection (a) [see section 4312(b) of this title] would not
promote recreational boating safety." §4312. Engine cut-off switches (a) Installation Requirement.—A
manufacturer, distributor, or dealer that installs propulsion machinery and
associated starting controls on a covered recreational vessel shall equip such
vessel with an engine cut-off switch and engine cut-off switch link that meet
American Boat and Yacht Council Standard A–33, as in effect on the date of the
enactment of the Frank LoBiondo Coast Guard Authorization Act of 2018 (Public
Law 115–282). (b) Use Requirement.— (1) In
general.—An individual operating a covered
recreational vessel shall use an engine cut-off switch link while operating on
plane or above displacement speed. (2) Exceptions.—The requirement under paragraph (1) shall not
apply if— (A) the main helm of the covered vessel is installed within an
enclosed cabin; or (B) the vessel does not have an engine cut-off switch and is not
required to have one under subsection (a).
(c) Education on Cut-off Switches.—The
Commandant of the Coast Guard, through the National Boating Safety Advisory
Committee established under section 15105, may initiate a boating safety
program on the use and benefits of cut-off switches for recreational vessels. (d) Availability of Standard for Inspection.— (1) In
general.—Not later than 90 days after the date of the
enactment of this section, the Commandant shall transmit American Boat and
Yacht Council Standard A–33, as in effect on the date of enactment of the Frank
LoBiondo Coast Guard Authorization Act of 2018 (Public Law 115–282), to— (A) the Committee on Transportation and Infrastructure of the
House of Representatives; (B) the Committee on Commerce, Science, and Transportation of the
Senate; and (C) the Coast Guard Office of Design and Engineering Standards;
and (D) the National Archives and Records Administration. (2) Availability.—The
standard submitted under paragraph (1) shall be kept on file and available for
public inspection at such Coast Guard office and the National Archives and
Records Administration. (e) Definitions.—In this section: (1) Covered
recreational vessel.—The term "covered
recreational vessel" means a recreational vessel that is— (A) less than 26 feet overall in length; and (B) capable of developing 115 pounds or more of static thrust. (2) Dealer.—The
term "dealer" means any person who is engaged in the sale and
distribution of recreational vessels or associated equipment to purchasers whom
the seller in good faith believes to be purchasing any such vessel or
associated equipment for purposes other than resale. (3) Distributor.—The term "distributor" means any
person engaged in the sale and distribution of recreational vessels and
associated equipment for the purposes of resale. (4) Manufacturer.—The term "equipment manufacturer"
means any person engaged in the manufacture, construction, or assembly of
recreational vessels or associated equipment, or the importation of
recreational vessels into the United States for subsequent sale. (5) Propulsion
machinery.—The term "propulsion machinery"
means a self-contained propulsion system, and includes, but is not limited to,
inboard engines, outboard motors, and sterndrive engines. (6) Static
thrust.—The term "static thrust" means the
forward or backwards thrust developed by propulsion machinery while stationary. (Added Pub. L. 115–282, title V,
§503(a), Dec. 4, 2018, 132 Stat. 4270; amended Pub. L. 116–283, div. G, title
LVXXXIII [LXXXIII], §8316(a), title LVXXXV [LXXXV], §8507(a)(2), Jan. 1,
2021, 134 Stat. 4699, 4752.)
Editorial
Notes References
in Text The date of enactment of the Frank LoBiondo
Coast Guard Authorization Act of 2018, referred to in subsecs. (a) and (d)(1),
is the date of enactment of Pub. L. 115–282, which was approved Dec.
4, 2018. The date of the enactment of this section,
referred to in subsec. (c)(1), is the date of enactment of Pub. L.
115–282, which was approved Dec. 4, 2018. Amendments 2021—Pub. L. 116–283, §8507(a)(2), substituted "Frank
LoBiondo Coast Guard Authorization Act of 2018 (Public Law 115–282)" for
"Coast Guard Authorization Act of 2017" in two places. Subsecs. (b) to (e). Pub. L.
116–283, §8316(a), added subsec. (b) and redesignated former subsecs. (b)
to (d) as (c) to (e), respectively.
Statutory
Notes and Related Subsidiaries Effective
Date of 2021 Amendment Amendment by Pub. L. 116–283 effective
90 days after Jan. 1, 2021, unless the Commandant of the Coast Guard, prior to
the date that is 90 days after Jan. 1, 2021, determines that the use
requirement enacted in section 8316(a) of Pub. L. 116–283 (amending
this section) would not promote recreational boating safety. See section
8316(c) of Pub. L. 116–283, set out as a note under section 4311
of this title. Effective
Date Pub. L. 115–282, title V,
§503(c), Dec. 4, 2018, 132 Stat. 4271, provided that:
"Section 4312 of title 46, United States Code, as amended [probably should
be "enacted"] by this section, shall take effect one year after the
date of the enactment of this Act [Dec. 4, 2018]."
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