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USCODE-2011-title46-subtitleII-partB-chap43-sec4310.pdf

Boat Owner's Report - Possible Safety Defect

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§ 4310

TITLE 46—SHIPPING

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.)
HISTORICAL AND REVISION NOTES
Revised section
4309 ..............................................

Source section (U.S. Code)
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.

§ 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 rea-

Page 82

sonable 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

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TITLE 46—SHIPPING

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.
(Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 532; Pub. L.
107–295, title IV, § 433, Nov. 25, 2002, 116 Stat.
2129.)
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, § 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,

§ 4311

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 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


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