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 AntiFouling 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