-CITE-

46 USC CHAPTER 43 - RECREATIONAL VESSELS 01/06/03

-EXPCITE-

TITLE 46 - SHIPPING

Subtitle II - Vessels and Seamen

Part B - Inspection and Regulation of Vessels

CHAPTER 43 - RECREATIONAL VESSELS

-HEAD-

CHAPTER 43 - RECREATIONAL VESSELS

-MISC1-

Sec.

4301. Application.

4302. Regulations.

4303. Inspection and testing.

4304. Importation of nonconforming vessels and equipment.

4305. Exemptions.

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.

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.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in sections 2102, 4105, 13106 of this

title; title 15 section 2052.

-End-

-CITE-

46 USC Sec. 4301 01/06/03

-EXPCITE-

TITLE 46 - SHIPPING

Subtitle II - Vessels and Seamen

Part B - Inspection and Regulation of Vessels

CHAPTER 43 - RECREATIONAL VESSELS

-HEAD-

Sec. 4301. Application

-STATUTE-

(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.

-SOURCE-

(Pub. L. 98-89, Aug. 26, 1983, 97 Stat. 529; Pub. L. 105-383, title

III, Sec. 301(b)(4), Nov. 13, 1998, 112 Stat. 3417.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Revised section Source section (U.S. Code)

--------------------------------------------------------------------

4301 46:1453

--------------------------------------------------------------------

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.

-REFTEXT-

REFERENCES IN TEXT

Presidential Proclamation No. 5928, referred to in subsec. (a),

is set out under section 1331 of Title 43, Public Lands.

-MISC2-

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".

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.

-End-

-CITE-

46 USC Sec. 4302 01/06/03

-EXPCITE-

TITLE 46 - SHIPPING

Subtitle II - Vessels and Seamen

Part B - Inspection and Regulation of Vessels

CHAPTER 43 - RECREATIONAL VESSELS

-HEAD-

Sec. 4302. Regulations

-STATUTE-

(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 Council

established under section 13110 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.

-SOURCE-

(Pub. L. 98-89, Aug. 26, 1983, 97 Stat. 530.)

-MISC1-

HISTORICAL AND REVISION NOTES

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Revised section Source section (U.S. Code)

--------------------------------------------------------------------

4302 46:1454

46:1455

46:1456

46:1464(g)

46:1488

--------------------------------------------------------------------

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.

AVAILABILITY AND USE OF EPIRBS FOR RECREATIONAL VESSELS

Pub. L. 105-383, title III, Sec. 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."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4303, 4306, 4310, 8905,

13110 of this title.

-End-

-CITE-

46 USC Sec. 4303 01/06/03

-EXPCITE-

TITLE 46 - SHIPPING

Subtitle II - Vessels and Seamen

Part B - Inspection and Regulation of Vessels

CHAPTER 43 - RECREATIONAL VESSELS

-HEAD-

Sec. 4303. Inspection and testing

-STATUTE-

(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.

-SOURCE-

(Pub. L. 98-89, Aug. 26, 1983, 97 Stat. 531.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Revised section Source section (U.S. Code)

--------------------------------------------------------------------

4303 46:1457

--------------------------------------------------------------------

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.

-End-

-CITE-

46 USC Sec. 4304 01/06/03

-EXPCITE-

TITLE 46 - SHIPPING

Subtitle II - Vessels and Seamen

Part B - Inspection and Regulation of Vessels

CHAPTER 43 - RECREATIONAL VESSELS

-HEAD-

Sec. 4304. Importation of nonconforming vessels and equipment

-STATUTE-

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.

-SOURCE-

(Pub. L. 98-89, Aug. 26, 1983, 97 Stat. 531.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Revised section Source section (U.S. Code)

--------------------------------------------------------------------

4304 46:1460

--------------------------------------------------------------------

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.

-End-

-CITE-

46 USC Sec. 4305 01/06/03

-EXPCITE-

TITLE 46 - SHIPPING

Subtitle II - Vessels and Seamen

Part B - Inspection and Regulation of Vessels

CHAPTER 43 - RECREATIONAL VESSELS

-HEAD-

Sec. 4305. Exemptions

-STATUTE-

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.

-SOURCE-

(Pub. L. 98-89, Aug. 26, 1983, 97 Stat. 531.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Revised section Source section (U.S. Code)

--------------------------------------------------------------------

4305 46:1458

--------------------------------------------------------------------

Section 4305 permits the Secretary to grant appropriate

exemptions from the requirements of this chapter when recreational

vessel safety will not be adversely affected.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 4306 of this title.

-End-

-CITE-

46 USC Sec. 4306 01/06/03

-EXPCITE-

TITLE 46 - SHIPPING

Subtitle II - Vessels and Seamen

Part B - Inspection and Regulation of Vessels

CHAPTER 43 - RECREATIONAL VESSELS

-HEAD-

Sec. 4306. Federal preemption

-STATUTE-

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.

-SOURCE-

(Pub. L. 98-89, Aug. 26, 1983, 97 Stat. 531.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Revised section Source section (U.S. Code)

--------------------------------------------------------------------

4306 46:1459

46:1460

--------------------------------------------------------------------

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.

-End-

-CITE-

46 USC Sec. 4307 01/06/03

-EXPCITE-

TITLE 46 - SHIPPING

Subtitle II - Vessels and Seamen

Part B - Inspection and Regulation of Vessels

CHAPTER 43 - RECREATIONAL VESSELS

-HEAD-

Sec. 4307. Prohibited acts

-STATUTE-

(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.

-SOURCE-

(Pub. L. 98-89, Aug. 26, 1983, 97 Stat. 531; Pub. L. 98-557, Sec.

8(a), Oct. 30, 1984, 98 Stat. 2862.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Revised section Source section (U.S. Code)

--------------------------------------------------------------------

4307(a) 46:1461(a)

4307(b) 46:1461(c)

--------------------------------------------------------------------

Section 4307 prohibits certain acts in the manufacture and

operation of recreational vessels.

AMENDMENTS

1984 - Subsec. (a)(1)(A). Pub. L. 98-557 designated existing

provisions as cl. (i), substituted "and" for "or", and added cl.

(ii).

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 4311 of this title.

-End-

-CITE-

46 USC Sec. 4308 01/06/03

-EXPCITE-

TITLE 46 - SHIPPING

Subtitle II - Vessels and Seamen

Part B - Inspection and Regulation of Vessels

CHAPTER 43 - RECREATIONAL VESSELS

-HEAD-

Sec. 4308. Termination of unsafe operation

-STATUTE-

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.

-SOURCE-

(Pub. L. 98-89, Aug. 26, 1983, 97 Stat. 532; Pub. L. 99-307, Sec.

1(9), May 19, 1986, 100 Stat. 445.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Revised section Source section (U.S. Code)

--------------------------------------------------------------------

4308 46:1462

--------------------------------------------------------------------

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.

AMENDMENTS

1986 - Pub. L. 99-307 substituted "individual in charge" for

"operator" in two places.

-End-

-CITE-

46 USC Sec. 4309 01/06/03

-EXPCITE-

TITLE 46 - SHIPPING

Subtitle II - Vessels and Seamen

Part B - Inspection and Regulation of Vessels

CHAPTER 43 - RECREATIONAL VESSELS

-HEAD-

Sec. 4309. Investigation and reporting

-STATUTE-

(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.

-SOURCE-

(Pub. L. 98-89, Aug. 26, 1983, 97 Stat. 532.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Revised section Source section (U.S. Code)

--------------------------------------------------------------------

4309 46:1463

--------------------------------------------------------------------

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.

-End-

-CITE-

46 USC Sec. 4310 01/06/03

-EXPCITE-

TITLE 46 - SHIPPING

Subtitle II - Vessels and Seamen

Part B - Inspection and Regulation of Vessels

CHAPTER 43 - RECREATIONAL VESSELS

-HEAD-

Sec. 4310. Repair and replacement of defects

-STATUTE-

(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 Council, 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.

-SOURCE-

(Pub. L. 98-89, Aug. 26, 1983, 97 Stat. 532; Pub. L. 107-295, title

IV, Sec. 433, Nov. 25, 2002, 116 Stat. 2129.)

-MISC1-

HISTORICAL AND REVISION NOTES

--------------------------------------------------------------------

Revised section Source section (U.S. Code)

--------------------------------------------------------------------

4310 46:1464

--------------------------------------------------------------------

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.

AMENDMENTS

2002 - Subsec. (c)(1)(A) to (C). Pub. L. 107-295, Sec. 433(2),

inserted "by first class mail or" before "by certified mail".

Subsec. (c)(2)(A), (B). Pub. L. 107-295, Sec. 433(1), substituted

"10" for "5".

-End-

-CITE-

46 USC Sec. 4311 01/06/03

-EXPCITE-

TITLE 46 - SHIPPING

Subtitle II - Vessels and Seamen

Part B - Inspection and Regulation of Vessels

CHAPTER 43 - RECREATIONAL VESSELS

-HEAD-

Sec. 4311. Penalties and injunctions

-STATUTE-

(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) 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.

(c) 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.

(d) 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.

(e) 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.

(f) 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.

(g) 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.

-SOURCE-

(Pub. L. 98-89, Aug. 26, 1983, 97 Stat. 534; Pub. L. 98-557, Sec.

8(b), (c), Oct. 30, 1984, 98 Stat. 2862; Pub. L. 101-650, title

III, Sec. 321, Dec. 1, 1990, 104 Stat. 5117.)

-MISC1-

HISTORICAL AND REVISION NOTES

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Revised section Source section (U.S. Code)

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4311(a) 46:1483

4311(b) 46:1484(a)

4311(c) 46:1484(b)

4311(d) 46:1484(d)

4311(e) 46:1485

4311(f) 46:1461(b)

4311(g) 46:1489

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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.

AMENDMENTS

1984 - Subsec. (b)(1). Pub. L. 98-557, Sec. 8(b), inserted

"defect or the" before "nonconformity".

Subsec. (f)(1). Pub. L. 98-557, Sec. 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.

-CHANGE-

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.

-End-