46 U.S.C. § 4310 — Repair and replacement of defects

Page 100 TITLE 46—SHIPPING § 4308 HISTORICAL AND REVISION NOTES—CONTINUED Revised section Source section (U.S. Code) 4307(b) ......................................... 46:1461(c) Section 4307 prohibits certain acts in the manufac- ture and operation of recreational vessels. Editorial Notes AMENDMENTS 1984—Subsec. (a)(1)(A). Pub. L. 98–557 designated ex- isting 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 fire- fighting devices or in an overloaded or other un- safe condition (as defined in regulations pre- scribed under this chapter) and, in the judgment of the official, the operation creates an espe- cially hazardous condition, the official may di- rect 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.) HISTORICAL AND REVISION NOTES Revised section Source section (U.S. Code) 4308 .............................................. 46:1462 Section 4308 authorizes an appropriate official to ter- minate 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 reg- ulations) and believes the operation creates an espe- cially hazardous condition, the operator may be di- rected to take immediate and reasonable steps nec- essary 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 infor- mation 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 rec- reational vessel manufacturer shall permit the officer, employee, or agent to inspect, at reason- able times, factories or other facilities, and records related to deciding whether the manu- facturer has acted or is acting in compliance with this chapter and regulations prescribed under this chapter. (b) Information reported to or otherwise ob- tained by the Secretary or the representative of the Secretary under this section containing or related to a trade secret or other matter re- ferred 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 pro- ceeding under this chapter. (Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 532.) HISTORICAL AND REVISION NOTES Revised section Source section (U.S. Code) 4309 .............................................. 46:1463 Section 4309 requires the establishment and mainte- nance of certain records by manufacturers, and the in- spection and access to these records by the Secretary, at reasonable times, so as to assure Federal enforce- ment officials that the manufacturer has acted or is in compliance with applicable laws and regulations. It also provides protection for matters related to trade se- crets and exemptions from public disclosure. § 4310. Repair and replacement of defects (a) In this section, ‘‘associated equipment’’ in- cludes only items or classes of associated equip- ment that the Secretary shall prescribe by regu- lation 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 equip- ment has left the place of manufacture and the recreational vessel manufacturer discovers or acquires information that the manufacturer de- cides, 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 manu- facturer shall provide notification of the defect or failure of compliance as provided by sub- sections (c) and (d) of this section within a rea- sonable time after the manufacturer has discov- ered 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, ex- cept that the requirement for notification of the first purchaser shall be satisfied if the rec- reational vessel manufacturer exercises rea- sonable diligence in establishing and main- taining a list of those purchasers and their current addresses, and sends the required no- tice 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 manu- facturer. (C) by first class mail or by certified mail or other more expeditious means to the dealers Page 101 TITLE 46—SHIPPING § 4311 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 rea- sonable time after the manufacturer has discov- ered the defect or failure, except that the manu- facturer’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 as- sociated 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 applica- ble to the recreational vessels or associated equipment. The Secretary may publish or other- wise disclose to the public information in the notices or other information the Secretary has that the Secretary considers will assist in car- rying 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, investiga- tion, or examination of reports, the Secretary decides that a recreational vessel or associated equipment to which this chapter applies con- tains a defect related to safety or fails to com- ply with an applicable regulation prescribed under this chapter and notification under this chapter is appropriate, the Secretary shall no- tify 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 per- sons designated in this chapter or dispute the Secretary’s decision. If disputed, the Secretary shall provide the manufacturer with an oppor- tunity 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 Sec- retary may publish notice of the proceeding in the Federal Register and provide interested per- sons, including the National Boating Safety Ad- visory Committee, with an opportunity to com- ment. If, after presentation by the manufac- turer, the Secretary decides that the rec- reational vessel or associated equipment con- tains a defect related to safety or fails to com- ply with an applicable regulation, the Secretary may direct the manufacturer to provide the no- tifications specified in this chapter. (g) The Secretary may prescribe regulations to carry out this section, including the establish- ment of procedures that require dealers and dis- tributors to assist manufacturers in obtaining information required by this section. A regula- tion prescribed under this subsection does not relieve a manufacturer of any obligation im- posed 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.) HISTORICAL AND REVISION NOTES Revised section Source section (U.S. Code) 4310 .............................................. 46:1464 Section 4310 imposes certain requirements on a rec- reational vessel and associated equipment manufac- turer 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 no- tification and who shall be notified. It assures the pub- lic of notification while protecting the manufacturer from the potential of damaging and inaccurate disclo- sures. Editorial Notes AMENDMENTS 2018—Subsec. (f). Pub. L. 115–282 substituted ‘‘Advi- sory 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), sub- stituted ‘‘10’’ for ‘‘5’’. § 4311. Penalties and injunctions (a) A person willfully operating a recreational vessel in violation of this chapter or a regula- tion 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, ex- cept that the maximum civil penalty may be not more than $250,000 for a related series of viola- tions. (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 no- tifications specified in this chapter, any person, including a director, officer or executive em- ployee 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