COAST GUARD AUTHORIZATION ACT OF 2010 INCLUDES 

CHANGES 

AFFECTING CIVIL PENLATIES. 

Written by Robert Bruce

On October 15, 2010, President Obama signed the Coast Guard 

Authorization Act of 2010, Public Law 111-281, into law. This new law 

contains many provisions on a wide variety of subjects related to the Coast 

Guard. Three of the provisions provide new authority to assess civil penalties 

or increase the amount of the civil penalty that may be assessed. 

Section 301 of the Authorization Act amends 33 U.S.C. § 471 which 

authorizes the Coast Guard to establish and regulate anchorages. Among 

other things, the maximum civil penalty for violating an anchorage 

regulation is increased from $100 to $10,000. This appears to be the first 

change to the civil penalty amount since the $100 maximum penalty was 

enacted in 1915. Clearly, in some circumstances, the old $100 maximum 

penalty was too small to be a serious factor in obtaining compliance with 

anchorage regulations. As a result, in at least one instance, the Coast Guard 

turned to its Ports and Waterways Safety Act authority, which is backed up 

by a civil penalty of up to $40,000, for enforcement of anchorage regulations. 

See 33 C.F.R. §§ 109.07 and 110.1a (anchorages included within the Port of 

New York). The new maximum civil penalty for violating anchorage 

regulations should provide a stronger incentive for mariners to comply with 

those regulations. 

Section 302 of the Authorization Act amends 46 U.S.C. 70506, part of the 

Maritime Drug Law Enforcement Act, to add a $5,000 civil penalty for simple 

possession of a controlled substance on a vessel subject to the jurisdiction of 

the United States. Before the enactment of this provision, only criminal 

penalties were available for simple possession of controlled substances. Many 

of these cases occur in areas of concurrent state and federal jurisdiction. 

Generally, state laws have provisions that can adequately deal with 

infractions of this nature. As a result, cases involving simple possession of 

personal use quantities of controlled substances have routinely been turned 
over to state authorities for prosecution. Some unusual circumstances that 

created a strong federal interest in the case would have typically been 

present to justify bringing such a criminal case in federal court. With the new 

authority to assess civil penalties for simple possession of controlled 

substances, there is likely to be less reluctance to pursue federal action. In 

fact, as we frequently see with boating while intoxicated cases, there may 

often be cases where both the state authorities and the Coast Guard will 

commence actions based on the same incident. Although Coast Guard 

Hearing Officers will consider the results of state actions for the same 

incident when acting on a civil penalty case, they are not bound by state 

action and there is no bar to assessing a Coast Guard civil penalty even after 

an individual has been sentenced by a state court for the same violation. 

Finally, Title X of the Authorization Act implements the International 

Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001, 

and Section 1042 of the Authorization Act creates civil penalties to enforce 

the new law. The maximum penalty for a violation of 33 U.S.C. Chapter 38 or 

implementing regulations is $37,500, except that, for a recreational vessel the 

maximum is $5,000. There is also a civil penalty of up to $50,000 for false 

statements or representations related to these requirements. 

The National Oceanic and Atmospheric Administration’s General Counsel 

website includes this information on the Harmful Anti-Fouling Systems 

(“AFS”) Convention:

“The International Convention on the Control of Harmful Anti-Fouling 

Systems on Ships entered into force on September 17, 2008. Adopted under 

the auspices of the International Maritime Organization on October 5, 2001, 

the AFS Convention was signed by the United States on December 12, 2002, 

and President Bush transmitted it to the Senate for its advice and consent on 

January 23, 2008. The Senate Foreign Relations Committee reported a 

proposed resolution of ratification with two declarations on July 29, 2008, 

and the full Senate approved the proposed resolution of ratification on 

September 26, 2008. The Convention, which NOAA played an important role 

in negotiating and developing, bans the application or use of tributyltin (an 

anti-fouling agent used on the hulls of ships to prevent the growth of marine 

organisms), calls for its removal from existing anti-fouling systems by 

January 1, 2008, and establishes a detailed and science-based framework for 

considering future restrictions on antifouling systems.” 

Certain vessels, of at least 400 gross tons or of at least 24 meters in length, 

will be required to have documentation attesting that their anti-fouling 

system is not harmful.