33 U.S.C. § 1907 — Violations

Page 672 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1906 1989—Subsec. (c)(1). Pub. L. 101–225 substituted ‘‘Annex I and Annex II’’ for ‘‘Annex V’’. 1987—Subsec. (a). Pub. L. 100–220, § 2103(a), designated existing provisions as par. (1), substituted ‘‘a port’s or terminal’s reception facilities for mixtures containing oil or noxious liquid substances’’ for ‘‘reception facili- ties of a port or terminal’’, and added par. (2). Subsec. (b). Pub. L. 100–220, § 2103(b), inserted ‘‘and in establishing regulations under subsection (a) of this section,’’ and ‘‘ships or’’. Subsec. (c). Pub. L. 100–220, § 2103(c), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: ‘‘If, upon inspection, reception facilities of a port or terminal are adequate to meet the requirements of the MARPOL Protocol and the regulations estab- lished hereunder, the Secretary shall, after consulta- tion with the Administrator of the Environmental Pro- tection Agency, issue a certificate to that effect to the applicant. A certificate issued under this subsection— ‘‘(1) is valid until suspended or revoked by the Sec- retary for cause or because of changed conditions; and ‘‘(2) shall be available for inspection upon the re- quest of the master, other person in charge, or agent of a seagoing ship using or intending to use the port or terminal. The suspension or revocation of a certificate issued under this subsection may be appealed to the Secretary and acted on by him in the manner prescribed by regu- lation.’’ Subsec. (e). Pub. L. 100–220, § 2103(d), designated exist- ing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, in subpar. (A), substituted ‘‘Annexes I and II of the Convention’’ for ‘‘the MARPOL Protocol’’, and added par. (2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100–220 effective Dec. 31, 1988, the date on which Annex V to the International Con- vention for the Prevention of Pollution from Ships, 1973, entered into force for the United States, see sec- tion 2002(a) of Pub. L. 100–220, set out as a note under section 1901 of this title. EFFECTIVE DATE Subsecs. (a), (c), and (f) of this section effective Oct. 21, 1980, see section 14(b) of Pub. L. 96–478, set out as a note under section 1901 of this title. § 1906. Incidents involving ships (a) Requirement to report incident The master, person in charge, owner, charterer, manager, or operator of a ship in- volved in an incident shall report the incident in the manner prescribed by Article 8 of the Con- vention in accordance with regulations promul- gated by the Secretary for that purpose. (b) Requirement to report discharge, probable discharge, or presence of oil The master or person in charge of— (1) a ship of United States registry or na- tionality, or operated under the authority of the United States, wherever located; (2) another ship while in the navigable wa- ters of the United States; or (3) a sea port or oil handling facility subject to the jurisdiction of the United States, shall report a discharge, probable discharge, or presence of oil in the manner prescribed by Arti- cle 4 of the International Convention on Oil Pol- lution Preparedness, Response and Cooperation, 1990 (adopted at London, November 30, 1990), in accordance with regulations promulgated by the Secretary for that purpose. (Pub. L. 96–478, § 7, Oct. 21, 1980, 94 Stat. 2300; Pub. L. 102–241, § 39, Dec. 19, 1991, 105 Stat. 2225.) Editorial Notes AMENDMENTS 1991—Pub. L. 102–241 amended section generally. Prior to amendment, section read as follows: ‘‘(a) As soon as he has knowledge of an incident, the master or other person in charge of a ship shall report it to the Secretary in the manner prescribed by Article 8 of the Convention. ‘‘(b) Upon receipt of the report of an incident involv- ing a ship, other than one of United States registry or nationality or one operated under the authority of the United States, the Secretary shall take the action re- quired by Article 8 of the Convention.’’ § 1907. Violations (a) General prohibition; cooperation and enforce- ment; detection and monitoring measures; reports; evidence It is unlawful to act in violation of the MARPOL Protocol, Annex IV to the Antarctic Protocol, this chapter, or the regulations issued thereunder. The Secretary shall cooperate with other parties to the MARPOL Protocol or to the Antarctic Protocol in the detection of violations and in enforcement of the MARPOL Protocol and Annex IV to the Antarctic Protocol. The Secretary shall use all appropriate and practical measures of detection and environmental moni- toring, and shall establish adequate procedures for reporting violations and accumulating evi- dence. (b) Investigations; subpenas: issuance by Sec- retary, enforcement; action by Secretary; in- formation to party Upon receipt of evidence that a violation has occurred, the Secretary shall cause the matter to be investigated. In any investigation under this section the Secretary may issue subpenas to require the attendance of any witness and the production of documents and other evidence. In case of refusal to obey a subpena issued to any person, the Secretary may request the Attorney General to invoke the aid of the appropriate dis- trict court of the United States to compel com- pliance. Upon completion of the investigation, the Secretary shall take the action required by the MARPOL Protocol or the Antarctic Pro- tocol and whatever further action he considers appropriate under the circumstances. If the ini- tial evidence was provided by a party to the MARPOL Protocol or the Antarctic Protocol, the Secretary, acting through the Secretary of State, shall inform that party of the action taken or proposed. (c) Ship inspections; reports to Secretary; addi- tional action (1) This subsection applies to inspections re- lating to possible violations of Annex I or Annex II to the Convention, of Article 3 or Article 4 of Annex IV to the Antarctic Protocol, or of this chapter by any seagoing ship referred to in sec- tion 1902(a)(2) of this title. (2) While at a port or terminal subject to the jurisdiction of the United States, a ship to Page 673 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1907 which the MARPOL Protocol or the Antarctic Protocol applies may be inspected by the Sec- retary— (A) to verify whether or not the ship has dis- charged a harmful substance in violation of the MARPOL Protocol, Annex IV to the Ant- arctic Protocol, or this chapter; or (B) to comply with a request from a party to the MARPOL Protocol or the Antarctic Pro- tocol for an investigation as to whether the ship may have discharged a harmful substance anywhere in violation of the MARPOL Pro- tocol or Annex IV to the Antarctic Protocol. An investigation may be undertaken under this clause only when the requesting party has furnished sufficient evidence to allow the Sec- retary reasonably to believe that a discharge has occurred. If an inspection under this subsection indicates that a violation has occurred, the investigating officer shall forward a report to the Secretary for appropriate action. The Secretary shall un- dertake to notify the master of the ship con- cerned and, acting in coordination with the Sec- retary of State, shall take any additional action required by Article 6 of the Convention. (d) Garbage disposal inspections; covered ships; enforcement actions (1) The Secretary may inspect a ship referred to in section 1902(a)(3) of this title to verify whether the ship has disposed of garbage in vio- lation of Annex V to the Convention, Article 5 of Annex IV to the Antarctic Protocol, or this chapter. (2) If an inspection under this subsection indi- cates that a violation has occurred, the Sec- retary may undertake enforcement action under section 1908 of this title. (e) Harmful substance or garbage disposal in- spections; covered ships; enforcement ac- tions (1) The Secretary may inspect at any time a ship of United States registry or nationality or operating under the authority of the United States to which the MARPOL Protocol or the Antarctic Protocol applies to verify whether the ship has discharged a harmful substance or dis- posed of garbage in violation of those Protocols or this chapter. (2) If an inspection under this subsection indi- cates that a violation of the MARPOL Protocol, of Annex IV to the Antarctic Protocol, or of this chapter has occurred the Secretary may under- take enforcement action under section 1908 of this title. (f) Inspections; enforcement (1) The Secretary may inspect a ship to which this chapter applies as provided under section 1902(a)(5) of this title, to verify whether the ship is in compliance with Annex VI to the Conven- tion and this chapter. (2) If an inspection under this subsection or any other information indicates that a violation has occurred, the Secretary, or the Adminis- trator in a matter referred by the Secretary, may undertake enforcement action under this section. (3) Notwithstanding subsection (b) and para- graph (2) of this subsection, the Administrator shall have all of the authorities of the Sec- retary, as specified in subsection (b) of this sec- tion, for the purposes of enforcing regulations 17 and 18 of Annex VI to the Convention to the ex- tent that shoreside violations are the subject of the action and in any other matter referred to the Administrator by the Secretary. (Pub. L. 96–478, § 8, Oct. 21, 1980, 94 Stat. 2300; Pub. L. 100–220, title II, § 2104, Dec. 29, 1987, 101 Stat. 1462; Pub. L. 101–225, title II, § 201(2), (3), Dec. 12, 1989, 103 Stat. 1910; Pub. L. 104–227, title II, § 201(e), Oct. 2, 1996, 110 Stat. 3043; Pub. L. 110–280, § 8, July 21, 2008, 122 Stat. 2614.) Editorial Notes AMENDMENTS 2008—Subsec. (f). Pub. L. 110–280 amended subsec. (f) generally. Prior to amendment, text read as follows: ‘‘Remedies and requirements of this chapter supple- ment and neither amend nor repeal any other provi- sions of law, except as expressly provided in this chap- ter. Nothing in this chapter shall limit, deny, amend, modify, or repeal any other remedy available to the United States or any other person, except as expressly provided in this chapter.’’ 1996—Subsec. (a). Pub. L. 104–227, § 201(e)(1), (2), in- serted ‘‘Annex IV to the Antarctic Protocol,’’ after ‘‘violation of the MARPOL Protocol,’’, ‘‘or to the Ant- arctic Protocol’’ after ‘‘to the MARPOL Protocol’’, and ‘‘and Annex IV to the Antarctic Protocol’’ after ‘‘en- forcement of the MARPOL Protocol’’. Subsec. (b). Pub. L. 104–227, § 201(e)(3), inserted ‘‘or the Antarctic Protocol’’ after ‘‘MARPOL Protocol’’ in two places. Subsec. (c)(1). Pub. L. 104–227, § 201(e)(4), inserted ‘‘, of Article 3 or Article 4 of Annex IV to the Antarctic Pro- tocol,’’ after ‘‘to the Convention’’. Subsec. (c)(2). Pub. L. 104–227, § 201(e)(5), (6), inserted ‘‘or the Antarctic Protocol’’ after ‘‘which the MARPOL Protocol’’ in introductory provisions, ‘‘, Annex IV to the Antarctic Protocol,’’ after ‘‘MARPOL Protocol’’ in subpar. (A), and ‘‘or the Antarctic Protocol’’ after ‘‘to the MARPOL Protocol’’ and ‘‘or Annex IV to the Ant- arctic Protocol’’ after ‘‘of the MARPOL Protocol’’ in subpar. (B). Subsec. (d)(1). Pub. L. 104–227, § 201(e)(8), inserted ‘‘, Article 5 of Annex IV to the Antarctic Protocol,’’ after ‘‘Convention’’. Subsec. (e)(1). Pub. L. 104–227, § 201(e)(9), inserted ‘‘or the Antarctic Protocol’’ after ‘‘MARPOL Protocol’’ and substituted ‘‘those Protocols’’ for ‘‘that Protocol’’. Subsec. (e)(2). Pub. L. 104–227, § 201(e)(10), inserted ‘‘, of Annex IV to the Antarctic Protocol,’’ after ‘‘MARPOL Protocol’’. 1989—Subsecs. (c)(1), (e)(2). Pub. L. 101–225 inserted ‘‘or of this chapter’’. 1987—Subsec. (c). Pub. L. 100–220, § 2104(a), added par. (1), designated existing provisions as par. (2), redesig- nated former pars. (1) and (2) as subpars. (A) and (B), re- spectively, and in closing provisions of par. (2) sub- stituted ‘‘The’’ for ‘‘If a report made under this sub- section involves a ship, other than one of United States registry or nationality or one operated under the au- thority of the United States, the’’. Subsecs. (d) to (f). Pub. L. 100–220, § 2104(b), added sub- secs. (d) and (e) and redesignated former subsec. (d) as (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100–220 effective Dec. 31, 1988, the date on which Annex V to the International Con- vention for the Prevention of Pollution from Ships, 1973, entered into force for the United States, see sec- tion 2002(a) of Pub. L. 100–220, set out as a note under section 1901 of this title. Page 674 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 1908 § 1908. Penalties for violations (a) Criminal penalties; payment for information leading to conviction A person who knowingly violates the MARPOL Protocol, Annex IV to the Antarctic Protocol, this chapter, or the regulations issued thereunder commits a class D felony. In the dis- cretion of the Court, an amount equal to not more than 1⁄2 of such fine may be paid to the per- son giving information leading to conviction. (b) Civil penalties; separate violations; assess- ment notice; considerations affecting amount; payment for information leading to assessment of penalty A person who is found by the Secretary, or the Administrator as provided for in this chapter, after notice and an opportunity for a hearing, to have— (1) violated the MARPOL Protocol, Annex IV to the Antarctic Protocol, this chapter, or the regulations issued thereunder shall be liable to the United States for a civil penalty, not to exceed $25,000 for each violation; or (2) made a false, fictitious, or fraudulent statement or representation in any matter in which a statement or representation is re- quired to be made to the Secretary, or the Ad- ministrator as provided for in this chapter, under the MARPOL Protocol, Annex IV to the Antarctic Protocol, this chapter, or the regu- lations thereunder, shall be liable to the United States for a civil penalty, not to exceed $5,000 for each statement or representation. Each day of a continuing violation shall con- stitute a separate violation. The amount of the civil penalty shall be assessed by the Secretary, or the Administrator as provided for in this chapter or his designee, by written notice. In de- termining the amount of the penalty, the Sec- retary, or the Administrator as provided for in this chapter, shall take into account the nature, circumstances, extent, and gravity of the pro- hibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and other mat- ters as justice may require. An amount equal to not more than 1⁄2 of such penalties may be paid by the Secretary, or the Administrator as pro- vided for in this chapter, to the person giving in- formation leading to the assessment of such penalties. (c) Abatement of civil penalties; collection by At- torney General The Secretary, or the Administrator as pro- vided for in this chapter, may compromise, mod- ify, or remit, with or without conditions, any civil penalty which is subject to assessment or which has been assessed under this section. If any person fails to pay an assessment of a civil penalty after it has become final, the Secretary, or the Administrator as provided for in this chapter, may refer the matter to the Attorney General of the United States for collection in any appropriate district court of the United States. (d) Liability in rem; district court jurisdiction A ship operated in violation of the MARPOL Protocol, Annex IV to the Antarctic Protocol, this chapter, or the regulations thereunder is liable in rem for any fine imposed under sub- section (a) or civil penalty assessed pursuant to subsection (b), and may be proceeded against in the United States district court of any district in which the ship may be found. (e) Ship clearance or permits; refusal or revoca- tion; bond or other surety If any ship subject to the MARPOL Protocol, Annex IV to the Antarctic Protocol, or this chapter, its owner, operator, or person in charge is liable for a fine or civil penalty under this section, or if reasonable cause exists to believe that the ship, its owner, operator, or person in charge may be subject to a fine or civil penalty under this section, the Secretary of the Treas- ury, upon the request of the Secretary, shall refuse or revoke the clearance required by sec- tion 60105 of title 46. Clearance may be granted upon the filing of a bond or other surety satis- factory to the Secretary. (f) Referrals for appropriate action by foreign country Notwithstanding subsection (a), (b), or (d) of this section, if the violation is by a ship reg- istered in or of the nationality of a country party to the MARPOL Protocol or the Antarctic Protocol, or one operated under the authority of a country party to the MARPOL Protocol or the Antarctic Protocol, the Secretary, or the Ad- ministrator as provided for in this chapter act- ing in coordination with the Secretary of State, may refer the matter to the government of the country of the ship’s registry or nationality, or under whose authority the ship is operating for appropriate action, rather than taking the ac- tions required or authorized by this section. (g) Deposits in Abandoned Seafarers Fund Any penalty collected under subsection (a) or (b) that is not paid under that subsection to the person giving information leading to the convic- tion or assessment of such penalties shall be de- posited in the Abandoned Seafarers Fund estab- lished under section 11113 of title 46. (Pub. L. 96–478, § 9, Oct. 21, 1980, 94 Stat. 2301; Pub. L. 100–220, title II, § 2105, Dec. 29, 1987, 101 Stat. 1463; Pub. L. 101–380, title IV, § 4302(n), Aug. 18, 1990, 104 Stat. 539; Pub. L. 103–182, title VI, § 688, Dec. 8, 1993, 107 Stat. 2222; Pub. L. 104–227, title II, § 201(f), Oct. 2, 1996, 110 Stat. 3043; Pub. L. 110–280, § 10, July 21, 2008, 122 Stat. 2615; Pub. L. 113–281, title III, § 320(c), Dec. 18, 2014, 128 Stat. 3054.) Editorial Notes CODIFICATION In subsec. (e), ‘‘section 60105 of title 46’’ substituted for ‘‘section 4197 of the Revised Statutes of the United States (46 U.S.C. App. 91)’’ on authority of Pub. L. 109–304, § 18(c), Oct. 6, 2006, 120 Stat. 1709, which Act en- acted section 60105 of Title 46, Shipping. AMENDMENTS 2014—Subsec. (g). Pub. L. 113–281 added subsec. (g). 2008—Pub. L. 110–280, § 10(1), substituted ‘‘MARPOL Protocol,’’ for ‘‘MARPOL Protocol,,’’ wherever appear- ing in subsecs. (a), (b), and (d). Subsec. (b). Pub. L. 110–280, § 10(2)(C), in concluding provisions, inserted ‘‘or the Administrator as provided