Coast Guard Authorization Act of 2023 Proposes Change to Section 70503 Creating a New Offense

In the first session of the 118^th Congress, the Coast Guard Authorization Act of 2023¹ seeks, among numerous other changes, an amendment to 46 U.S.C. § 70503 that would create a new offense prosecutable under the MDLEA. In its entirety, section of 333 of the Act states the following:

SEC. 333. CONTROLLED SUBSTANCE ONBOARD VESSELS.

Section 70503(a) of title 46, United States Code, is amended-

(1) in the matter preceding paragraph (1) by striking ‘While on board a covered vessel, an individual’ and inserting ‘An individual’;

(2) by amending paragraph (1) to read as follows:

‘(1) manufacture or distribute, possess with intent to manufacture or distribute, or place or cause to be placed with intent to manufacture or distribute a controlled substance on board a covered vessel;’; and

(3) in paragraph (2) by inserting ‘aboard a covered vessel’ after ‘Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 881(a))’.

As we all know, the current language of Section 70503 is the following:

(a) Prohibitions. — While on board a covered vessel, an individual may not knowingly or intentionally–

(1) manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance;

(2) destroy (including jettisoning any item or scuttling, burning, or hastily cleaning a vessel), or attempt or conspire to destroy, property that is subject to forfeiture under section 511(a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 881(a)); or

(3) conceal, or attempt or conspire to conceal, more than $100,000 in currency or other monetary instruments on the person of such individual or in any conveyance, article of luggage, merchandise, or other container, or compartment of or aboard the covered vessel if that vessel is outfitted for smuggling.

If the Coast Guard Authorization Act of 2023 is passed as proposed, Section 70503 will read:

(a) Prohibitions. — An individual may not knowingly or intentionally–

(1) manufacture or distribute, possess with intent to manufacture or distribute, or place or cause to be placed with intent to manufacture or distribute a controlled substance on board a covered vessel;

Essentially, the Coast Guard Authorization Act of 2023 aims to expand the MDLEA by creating a new offense that targets individuals responsible for loading narcotics (or causing narcotics to be loaded) on vessels. If passed by both the House and Senate, this amendment would effectively broaden the scope of the MDLEA. It will be interesting to see how attorneys and federal law enforcement agencies utilize this new offense in their investigations beyond simply prosecuting a vessel’s occupants (or relying on § 70506(b)’s conspiracy clause).²

The Coast Guard Authorization Act of 2023 is currently pending in the House as H. R. 2741.

1
H.R. 2741 — 118th Congress: Coast Guard Authorization Act of 2023.” www.GovTrack.us. 2023. April 22, 2023 https://www.govtrack.us/congress/bills/118/hr2741
2
See U.S. v. Ballestas, 795 F.3d 138 (D.C. Cir. 2015) (MDLEA applies to conduct perpetrated on land pursuant to a conspiracy whereby drugs would be placed on a vessel. The court concluded that the “felonies” clause in the Constitution grants Congress the authority to criminalize the conduct beyond those simply “on board” the vessel.).