Rule2021-26046
Financial Responsibility-Vessels; Superseded Pollution Funds
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 1, 2021
Effective
January 3, 2022
Issuing agencies
Homeland Security Department
Abstract
The Coast Guard is issuing regulations to expand vessel financial responsibility to apply to all tank vessels greater than 100 gross tons as required by statute, and to make other amendments that clarify and update reporting requirements, reflect current practice, and remove unnecessary regulations. These regulations ensure that the Coast Guard has current information when there are significant changes in a vessel's operation, ownership, or evidence of financial responsibility, and reflects current best practices in the Coast Guard's management of the Certificate of Financial Responsibility program.
Full Text
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<title>Federal Register, Volume 86 Issue 228 (Wednesday, December 1, 2021)</title>
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[Federal Register Volume 86, Number 228 (Wednesday, December 1, 2021)]
[Rules and Regulations]
[Pages 68123-68149]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26046]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 135, 138, and 153
[Docket No. USCG-2017-0788]
RIN 1625-AC39
Financial Responsibility--Vessels; Superseded Pollution Funds
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is issuing regulations to expand vessel
financial responsibility to apply to all tank vessels greater than 100
gross tons as required by statute, and to make other amendments that
clarify and update reporting requirements, reflect current practice,
and remove unnecessary regulations. These regulations ensure that the
Coast Guard has current information when there are significant changes
in a vessel's operation, ownership, or evidence of financial
responsibility, and reflects current best practices in the Coast
Guard's management of the Certificate of Financial Responsibility
program.
DATES: This final rule is effective January 3, 2022.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, type USCG-
2017-0788 in the search box and click ``Search.'' Next, in the Document
Type
[[Page 68124]]
column, select ``Supporting & Related Material.''
FOR FURTHER INFORMATION CONTACT: For information about this document
call or email Benjamin H. White, National Pollution Funds Center, Coast
Guard; telephone 202-795-6066, email <a href="/cdn-cgi/l/email-protection#4406212a2e25292d2a6a0c6a132c2d302104313727236a292d28"><span class="__cf_email__" data-cfemail="b6f4d3d8dcd7dbdfd898fe98e1dedfc2d3f6c3c5d5d198dbdfda">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Basis and Purpose, and Regulatory History
III. Discussion of Comments and Changes
IV. Discussion of the Rule
V. Regulatory Analyses
A. Regulatory Planning and Review
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
F. Unfunded Mandates
G. Taking of Private Property
H. Civil Justice Reform
I. Protection of Children
J. Indian Tribal Governments
K. Energy Effects
L. Technical Standards
M. Environment
I. Abbreviations
311(k) Fund The fund established by Section 311(k) of the Federal
Water Pollution Control Act
CERCLA Comprehensive Environmental Response, Compensation, and
Liability Act of 1980
COFR Certificate of Financial Responsibility
CFR Code of Federal Regulations
CIMS Case Information Management System
DHS Department of Homeland Security
eCOFR Electronic Certificate of Financial Responsibility
EEZ Exclusive Economic Zone
FWPCA Federal Water Pollution Control Act
GT Gross Tonnage
IRFA Initial Regulatory Flexibility Analysis
MISLE Marine Information for Safety and Law Enforcement
NPFC National Pollution Funds Center
NPRM Notice of proposed rulemaking
OCSLA Fund Offshore Oil Pollution Compensation Fund
OMB Office of Management and Budget
OPA 90 Oil Pollution Act of 1990
OSLTF Oil Spill Liability Trust Fund
RA Regulatory Analysis
SBA Small Business Administration
U.S. United States
U.S.C. United States Code
Sec. Section
II. Basis and Purpose, and Regulatory History
Responsible parties for certain vessels must establish and maintain
evidence of financial responsibility, under both the Oil Pollution Act
of 1990 (OPA 90), as amended, (specifically, 33 U.S.C. 2716) and the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA) (specifically, 42 U.S.C. 9608). The evidence of
financial responsibility must meet the maximum amount of liability
under 33 U.S.C. 2704(a) or (d). Violators of those requirements are
subject to various penalties under 33 U.S.C. 2716a and 42 U.S.C. 9609.
The 2010 Coast Guard Authorization Act (Pub. L. 111-281, 124 Stat.
2988 (October 15, 2010)) expands OPA 90 by adding any tank vessel
greater than 100 gross tons but less than or equal to 300 gross tons
using any place subject to U.S. jurisdiction to the population of
vessels subject to the evidence of financial responsibility
requirements. The Coast Guard is amending the Code of Federal
Regulations (CFR) to reflect that statutory change.
The Coast Guard had previously issued Certificate of Financial
Responsibility (COFR) regulations at 33 CFR part 138, subpart A, which
apply to vessels over 300 gross tons, as well as certain other vessels
depending on how and where they are operated. The Coast Guard has
modernized and simplified its COFR program since those regulations were
established. Certain aspects of the COFR program are improved,
particularly in the COFR requirements for reporting changes in vessel
operation, ownership, or evidence of financial responsibility that
affected the basis of the Coast Guard's decision to issue a COFR.
Finally, the structure of the COFR regulations and some of their
provisions, including the rules for applying vessel gross tonnage, have
been modernized to reflect changes in the law and Coast Guard practice,
since OPA 90's initial legislation.\1\ These changes increase
flexibility for operators and remove unnecessary administrative
paperwork burdens to the public and to National Pollution Funds Center
(NPFC).
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\1\ This final rule conforms the COFR regulatory text to the
Coast Guard's ``Tonnage Regulations Amendments'' final rule (81 FR
18701, March 31, 2016), which amended the U.S. tonnage regulations
in 46 CFR part 69.
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A. Purpose of COFR Regulations
Under OPA 90, each responsible party (owners, operators, and demise
charters) for a vessel from which oil is discharged, or which poses the
substantial threat of a discharge of oil, into or upon the navigable
waters or adjoining shorelines or the exclusive economic zone (EEZ), is
jointly and severally liable for the specified removal costs and
damages up to prescribed limits of liability.\2\ Similar requirements
pertaining to hazardous substances apply to owners and operators of
vessels and facilities under 42 U.S.C. 9607 of CERCLA.
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\2\ OPA 90 defines ``liable'' and ``liability'' as ``the
standard of liability which obtains under section 1321 of this title
[Section 311 of the FWCPA].'' 33 U.S.C. 2701(17). Liability under
Section 311, in turn, ``has been determined repeatedly to be strict,
joint and several.'' H.R.Rep. No. 101-653, at 780 (1990), reprinted
in 1990 U.S.C.C.A.N. 779, 780, 1990 WL132747.
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Under OPA 90 and CERCLA, the responsible parties for certain
categories of vessels must establish and maintain evidence of financial
responsibility in accordance with regulations promulgated by the
Secretary. The purpose of this requirement is to ensure that, in
advance of an oil pollution incident or a hazardous substance release,
the responsible parties for the vessels in the specified categories
have the financial ability to meet their potential liabilities under
OPA 90 and CERCLA up to the applicable limits of liability.
Under 33 U.S.C. 2716 evidence of financial responsibility is
required for the following categories:
(1) Vessels greater than 300 gross tons (except a non-self-
propelled vessel that does not carry oil as cargo or fuel) using any
place subject to the jurisdiction of the United States.
(2) Vessels using the waters of the EEZ to transship or lighter oil
destined for a place subject to the jurisdiction of the United States
(U.S.).
(3) Tank vessels greater than 100 gross tons using any place
subject to the jurisdiction of the United States.
B. History of COFR Regulations
Initially, the Coast Guard established COFR regulations in 33 CFR
part 138 with an interim rule published July 1, 1994 (59 FR 34210)
followed by a final rule published March 7, 1996 (61 FR 9264). In 2008
the Coast Guard amended the COFR regulations and placed them in a newly
created subpart A of part 138 (73 FR 53691, September 17, 2008).\3\ In
addition to making several other changes, that final rule removed a
requirement that responsible parties carry an original or authorized
copy of the current COFR aboard each covered vessel, because improved
technology enabled the Coast Guard to view vessel COFRs electronically.
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\3\ That rule expanded part 138's heading to ``Financial
Responsibility for Water Pollution (Vessels) and OPA 90 Limits of
Liability (Vessels and Deepwater Ports)'' and dedicated subpart B to
the last half of the revised heading--limits of liability for
vessels and deepwater ports under OPA 90.
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This 2021 rule follows our consideration of comments on a Notice of
Proposed Rulemaking (NPRM) published on May 13, 2020 (85 FR
[[Page 68125]]
28802) proposing further changes to part 138, subpart A. Six comments
were received that raised seven issues. No public meeting was requested
and none was held.
C. History of Fund Regulations in 33 CFR Part 135 and Subpart D of 33
CFR Part 153
The Coast Guard added part 135, titled ``Offshore Oil Pollution
Compensation Fund,'' to 33 CFR in 1979 (44 FR 16860, March 19, 1979)
and it added subpart D, titled ``Administration of the Pollution
Fund,'' to 33 CFR part 153 in 1971 (36 FR 7009, April 13, 1971). This
rule removes 33 CFR part 135 and subpart D of 33 CFR part 153, which
concern management of two pollution funds for which OPA 90 repealed the
authorities. The two defunct funds are the Offshore Oil Pollution
Compensation Fund (OSCLA Fund) in 33 CFR part 135 and the Federal Water
Pollution Control Act (FWPCA) Section 311(k) Fund (311(k) Fund) in
subpart D of 33 CFR part 153.
On November 1, 2011, the Coast Guard published a notice of inquiry
(76 FR 67385) soliciting public comment on whether to remove 33 CFR
part 135.\4\ We received no adverse comments; there were three comments
supporting the removal of part 135. No comments were received during
the 2020 NPRM comment period addressing the removal of either 33 CFR
part 135 or subpart D of 33 CFR part 153. This rule removes those
portions of the CFR.
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\4\ The notice of inquiry was initially published as part of the
Coast Guard's Claims Procedures Under the Oil Pollution Act of 1990
rulemaking. However, this rulemaking was closer to completion, so
the removal of 33 CFR part 135 has been included with this
rulemaking.
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III. Discussion of Comments and Changes
The Coast Guard received six comment submissions raising seven
issues during the 90-day public comment period for the proposed rule,
which closed on August 11, 2020. The letters we received during the
public comment period were from three COFR guarantors, a regional
citizen group, an insurance trade association and an insurance
underwriter. The following discussion summarizes the public comments we
received and our responses to the comments. In general, commenters were
very supportive of the changes. Three regulatory changes from those we
proposed were made based on the comments received.
Supportive comments. One commenter generally supports proposed
changes that would assist vessel operators and the U.S. Coast Guard
National Pollution Funds Center (NPFC) in effectively managing the
Certificate of Financial Responsibility Program. Another commenter
further supports reporting GT tonnage measurement systems and
submitting the GT certifying document upon request.
Terminology comments. Two commenters addressed terminology
clarifications in section 138.30 of the proposed rule. While one
commenter was supportive of terminology clarifications, the other
commenter cited the term ``responsible party'' as an example of
terminology that could lead to confusion if the definitions were not
compatible with the relevant statutes. The Coast Guard agrees with this
commenter and as proposed, had modified some definitions to cross
reference to the relevant statutes but notes that the definition of
``responsible party'' had non-substantive changes in the proposed rule
to better align with OPA 90.
Improved technology comments. A commenter supports our proposed
revisions to the COFR regulations to incorporate improved management
practices and technological advances in 138.60. The changes include
several minor changes in 138.60 to make it easier for operators to file
information electronically, by explicitly allowing scanned documents
and email or faxed submissions. The rule also modifies past technical
amendments to implement Electronic COFRs, which makes it easier to keep
COFR information updated as vessel operations change. This will
increase flexibility for operators and remove unnecessary
administrative paperwork burdens to the public.
Director's discretion to grant a waiver comment. One commenter
notes that proposed section 138.60(e) appears to restrict the
discretion available to the Director in the granting of exceptions, and
does not permit the granting of a waiver if an application is made
where a vessel is set to arrive within 21 days from the application
date. Accordingly, the commenter recommends that a variation of the
original ``discretion'' language contained in the existing rule be
retained for the proposed Section 138.150 prior notice requirements. We
agree with the commenter that the discretionary language is too
restrictive, and are removing the written request requirement for
requesting an exception under 138.60(e). The phrase ``only upon written
request, submitted as provided in paragraph (c) and (d) of this
section, in advance of the deadline and'', has been removed from the
regulatory text, as well as the sentence: ``the Director will not grant
a deadline exception request that does not set forth the reasons for
the request and that does not give NPFC sufficient time to consider and
act on an Application or a request for COFR renewal before the COFR is
required.'' The Director may now grant an exception for good cause
shown.
Surety Bonds comment. One commenter expressed concern with removing
the reference to surety bonds from section 138.110, stating that they
disagree with the assertion that a surety is unnecessary because it has
rarely been used to meet the financial responsibility requirement. We
disagree with this commenter. While this final rule removes the surety
bond as a specifically mentioned method for establishing and
maintaining evidence of financial responsibility, surety bonds are
still a viable option. They have not been eliminated as an acceptable
method; they may still be permitted under the ``other guaranty methods
for establishing evidence of financial responsibility'' provided that
the COFR Operator completes the requirements 138.110(f) and upon the
Director's acceptance of that method. We did not make a change from the
proposed rule based on this comment.
Reason for termination of guaranty comments. One commenter supports
the inclusion of the reporting requirement of the reason for
termination of a guaranty by a guarantor in 138.110(a)(3)(i). Another
commenter disagrees, stating that requiring guarantors to report
information, such as reasons for canceling a guaranty would make them
become an enforcement mechanism for the Coast Guard, and would require
them to breach non-disclosure agreements with customers. We disagree
with the latter commenter. The regulatory text in 138.110(a)(3)(i)
requests the guarantor provide NPFC the reason for termination, if
known. It is not intended to make the guarantor engage in any type of
an enforcement mechanism on behalf of the Coast Guard. We did not make
a change from the proposed rule based on this comment.
Evidence of financial responsibility comments. One commenter seeks
clarification on the new provisions in section 138.110(b)(2)(i)--in
particular, they ask what evidence is actually required to establish
ability to issue COFR guarantees and to what levels? The regulation is
not specific as to what evidence is required, nor should it be. It
offers a few items as examples that will influence the decision, but
largely maintains NPFC's discretion. The purpose and focus of the
regulation is to provide general guidelines, but also allow for
flexibility, subject to the Director's discretion. The commenter
[[Page 68126]]
further states that when and if these rule changes take effect, it
would appear that a request for initial determination of acceptability
to serve as COFR Insurance Guarantor must be made 90 days before
issuing a guaranty. That statement is correct. Finally, the commenter
asks whether this is only for a new guarantor. That is, will existing
approvals be grandfathered in or is the new provision essentially a
revocation of all existing guarantors who must restart the process
before the rule can take effect? Under the final rule, prior COFR
insurance guarantors do not lose their status and do not have to
restart the process. It was never NPFC's intention to revoke all
existing guarantors and start over; those guarantors already approved
will continue to be approved. We did not make a change from the
proposed rule based on this comment.
The same commenter states that while it has no objection to having
to establish continued acceptability of asset levels each year as set
forth in section 138.110(b)(2)(ii), any requirement that guarantors
report on themselves is vague and nebulous. Without guidance in the
proposed rule, guarantors will be unable to determine what constitutes
material changes in financial condition that need to be reported. We
disagree with this commenter. A guarantor should know if their
financial situation has changed or if other major changes have occurred
that should be reported, such as a change that would impair their
ability to fully satisfy their financial responsibility obligations
under OPA 90, or a material condition that affects their ability to pay
claims, or incur the expense of paying for cleanup. If there is no
change, the guarantor should be able to report ``no change.''
Withdrawal of application comments. Two commenters note that a COFR
Operator is permitted under proposed section 138.140(a) to withdraw an
Application for a COFR at any time prior to issuance of a COFR and
suggests that section should be amended to include and permit the
withdrawal of any Application made on behalf of the COFR Operator or
responsible party, including by a COFR guarantor. We agree that a COFR
Guarantor should also have the ability to withdraw an application for a
COFR at any time prior to its issuance. As a result, we will be
revising the regulatory text in 138.140(a) to add the clause ``or
anyone authorized to act on their behalf'' after ``A COFR Operator.''
Section 138.140(a) will now read: A COFR Operator, or anyone authorized
to act on their behalf, may withdraw an Application at any time prior
to issuance of the COFR.
Reporting requirements comments. While two commenters support the
changes in 138.150, several commenters oppose them. An opposing
commenter believes these requirements are unrealistic, unreasonable,
and impracticable and thus should be revised to deal with the realities
of the industry without compromising the purposes for which COFR
guaranties are issued. That same commenter continues by stating that
the 21-day and 3-day prior reporting requirements are in many cases
unrealistic and unworkably inconsistent with how vessels are scheduled
to call in the United States. The commenter gave an example of a
foreign vessel without a COFR which suddenly must make a call to a U.S.
port, either for a repair or a spot charter to receive goods from a
U.S. port, causing that vessel to apply for a COFR opportunistically.
We disagree with this commenter. The scenario that this commenter
describes does not apply to the revised 138.150. The 21-day
notifications in 138.150(b) requiring issuance of a new COFR and 3-day
notification in 138.150(c) not requiring issuance of a new COFR refer
to pre-existing COFRs, which must now be either replaced, or updated,
based on a change of circumstances in the pre-existing COFR. The
scenario of a foreign vessel without a COFR requiring a COFR prior to
entry into a U.S. port will follow the procedures set forth in 138.60
and 138.70 for issuance of a new COFR. A ``waiver'' is still available
under 138.60(e)(3), permitting the Director to grant an exception to a
deadline for good cause shown.
Two commenters allege that the reporting requirements in 138.150(b)
are duplicative. One commenter states that COFR guarantors should not
be required to report changes that have already been reported to the
Director by a COFR Operator, even though the COFR guarantor will
receive notice of such changes (and thus in the ordinary course of its
business) pursuant to section 138.150(b). Otherwise an unnecessary
double reporting requirement will exist in the new regulations. The
other commenter almost reiterates the previous commenter, stating that
it is noted that COFR Operators are required by section 138.150(b) to
give notice to their COFR guarantors, at the same time that they give
notice to the Director, of changes that may require issuance of a new
COFR. The commenter continues by saying that COFR guarantors should not
be required to report the same changes, which have already been
reported to the Director by a COFR Operator. Finally, the commenter
says that otherwise, an unnecessary and redundant reporting requirement
will exist in the new regulations. The commenters presume that the
operator has reported the information to the Coast Guard. If the Coast
Guard receives the information from two different sources, it will
validate the information received.
Four commenters expressed concern with the reporting requirement
imposed on them in proposed section 138.150(d). The commenters'
principal concern is that the new reporting requirement requires
guarantors to report changes to vessels that the guarantor can't
possibly give notice until they themselves are given notice by the
vessel operator. A secondary concern held by the commenters is that the
new reporting requirement will require guarantors to breach non-
disclosure agreements in place with customers should it take effect.
NPFC agrees with the group of commenters regarding section 138.150(d).
As a result, we are amending the regulatory text to limit a guarantor's
obligation to report material changes in prior COFR Applications to
information of which it becomes aware in the ordinary course of its
business. We have inserted ``once known, or should have known, in the
ordinary course of business,'' after the phrase ``explaining the reason
for the intended termination.'' The final sentence ``In addition, each
guarantor (or, if there are multiple guarantors, each lead guarantor)
must give the Director notice by email or other electronic means as
soon as possible before any other change occurs that would require new
evidence of financial responsibility or issuance of a new COFR under
paragraph (b) of this section.'' has been deleted.
Several suggestions were made that were outside of the scope of
this rulemaking, and therefore we will not address them here.
IV. Discussion of the Rule
After considering these comments received on the NPRM published May
13, 2020 (85 FR 28802), we are issuing this final rule that revises 33
CFR part 138, subpart A, and removes the superseded regulations in 33
CFR parts 135 and 153. We explain specific changes this final rule
introduces below.
A. Overview of Changes to Existing COFR Regulations
Following is an overview of revisions to 33 CFR part 138, subpart
A:
(1) Evidence of financial responsibility for tank vessels greater
than 100 gross tons but less than or equal to 300 gross tons. As
required by 33 U.S.C. 2716(a)(3), we extend the
[[Page 68127]]
regulatory requirement to establish and maintain evidence of financial
responsibility to any tank vessel greater than 100 gross tons but less
than or equal to 300 gross tons using any place subject to the
jurisdiction of the United States.
(2) Reporting requirements. We also reorganize, clarify, and update
the reporting requirements for submitting a COFR Application. Examples
of new requirements include documenting evidence of financial
responsibility submitted in support of an Application or a request for
COFR renewal and adding into regulatory text the current practice of
guarantor notification.
This set of changes--including Sec. 138.150, which is dedicated to
reporting requirements and expressly links those requirements to
enforcement provisions--aims to address instances in which COFR
Operators fail to report changes to their status, as was previously
required by 33 CFR 138.90(e). These failures included failing to report
a vessel's financial changes in a timely manner, failing to report a
vessel transfer to a new owner, and failing to secure a guaranty and
apply for a new COFR--and had resulted in compliance gaps. These
previous gaps compromised emergency responses where an inability to
confirm financial responsibility had caused untimely responses to oil
spills and undermined the COFR program.
Lastly, these revisions ensure that the Director receives the most
current and accurate information when issuing a COFR. These revisions
improve the Coast Guard's ability to verify vessel compliance with COFR
regulations. For example, if an owner sells a vessel located in a place
subject to U.S. jurisdiction, the new owner is now a responsible party
and is immediately subject to the COFR program. However, enforcing
compliance with the COFR program's requirements depends on the Coast
Guard knowing about the vessel transfer. The regulatory revisions
mitigate the risk of uninsured responsible parties and derelict
vessels.
(3) Revise COFR regulations to incorporate improved management
practices and technological advancements. We also amend the COFR
regulations to reflect changes in the NPFC's management of the COFR
program. The revisions include the following:
<bullet> Expressly authorizes COFR Operators, guarantors, and
agents for service of process to submit signed scanned documents;
<bullet> Permits COFR Operators submitting Applications or requests
for COFR renewal by email or fax to pay the COFR Application and
certification fees up to 21 days after submission. This method replaces
the requirement to pay certification fees before the NPFC issues the
COFR;
<bullet> Updates and simplifies the provisions that detail how to
apply gross tonnage assigned under different measurement systems. This
reflects changes in the law since OPA 90's initial legislation and
conforms the regulatory text to the Coast Guard's ``Tonnage Regulations
Amendments'' final rule (81 FR 18701, March 31, 2016), which amended
the U.S. tonnage regulations in 46 CFR part 69;
<bullet> Adds new provisions describing the COFR program's
procedures for determining the acceptability of COFR guarantors; and
<bullet> Implements the Electronic COFR (eCOFR). These regulatory
changes help manage the COFR program more effectively, reduce the
burden to the public, and accommodate the frequent changes in vessel
operation during the normal course of maritime commerce.
(4) Clarifies terminology. Terminology in COFR regulations is now
consistent with applicable law and COFR program business practices.
These changes included using terms of art consistently and simplifying
terminology.
B. Discussion of Specific Changes to Existing COFR Regulations
Table 1 provides a section-number crosswalk between the existing
COFR regulations and those in this final rule. The crosswalk assists
the reader in comparing those currently in the CFR with those that will
become effective January 3, 2022. Following table 1 is a discussion of
the substantive changes, including new requirements or updates to the
rule that match current Coast Guard practice. We applied plain language
doctrine required by Executive Order 13563 to make these regulations
easier to understand.
Table 1--Crosswalk of Existing COFR Regulations and Those in This Final
Rule
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Existing COFR regulations Final rule COFR regulations
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Part 138--Financial Responsibility for Part 138--Evidence of Financial
Water Pollution (Vessels) and OPA 90 Responsibility for Water
Limits of Liability (Vessels, Pollution (Vessels) and OPA 90
Deepwater Ports and Onshore Limits of Liability (Vessels,
Facilities). Deepwater Ports and Onshore
Facilities).
Subpart A--Financial Responsibility for Subpart A--Evidence of
Water Pollution (Vessels). Financial Responsibility for
Water Pollution (Vessels).
Sec. 138.10 Scope.................... Sec. 138.10 Scope and
purpose.
Sec. 138.15 Applicability............ Sec. 138.20 Applicability.
Sec. 138.20 Definitions.............. Sec. 138.30 Definitions.
Sec. 138.30 General.................. Sec. 138.40 General
requirements.
Sec. 138.30(c) through (f)........... Sec. 138.50 How to apply
vessel gross tonnages.
Sec. 138.40 Forms.................... Sec. 138.60 Forms and
submissions; ensuring
submission timeliness.
Sec. 138.45 Where to apply for and Sec. 138.60 Forms and
renew Certificates. submissions; ensuring
submission timeliness.
Sec. 138.50 Time to apply............ Sec. 138.80 Applying for
COFR.
Sec. 138.60 Applications, general Sec. 138.80 Applying for
instructions. COFR.
Sec. 138.65 Issuance of Certificates. Sec. 138.70 Issuance and
renewal of COFR.
Sec. 138.70 Renewal of Certificates.. Sec. 138.90 Renewing COFR.
Sec. 138.80 Financial responsibility, Sec. 138.110 How to establish
how established. and maintain evidence of
financial responsibility.
Sec. Sec. 138.80(f) [untitled] and Sec. 138.100 How to calculate
138.85 Implementation schedule for a total applicable amount.
amendments to applicable amounts by
regulation.
Sec. 138.90(a)-(c) Individual and Sec. 138.80 Applying for
Fleet Certificates. COFR.
Sec. 138.90(d) and (e), untitled..... Sec. 138.150 Reporting
requirements.
Sec. 138.100 Non-owning operator's Sec. 138.160 Non-owning COFR
responsibility for identification. Operator's responsibility for
identification.
Sec. 138.110 Master Certificates..... Sec. 138.80 Applying for
COFR.
Sec. 138.120 Certificates, denial or Sec. 138.140 Application
revocation. withdrawals, COFR denials and
revocations.
Sec. 138.130 Fees.................... Sec. 138.120 Fees.
[[Page 68128]]
Sec. 138.140 Enforcement............. Sec. 138.170 Enforcement.
Sec. 138.150 Service of process...... Sec. 138.130 Designating
agents for service of process.
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Sec. 138.10 Scope and Purpose
The scope of subpart A Sec. 138.10(a)(2) includes the standards
and procedures the Coast Guard uses to determine guarantor
acceptability. In addition, the scope of subpart A Sec. 138.10(a)(3)
includes the reporting requirements for guarantors. These changes for
submitting evidence of financial responsibility on behalf of the COFR
Operator reflect current practice.
Sec. 138.20 Applicability
As required by statute, Sec. 138.20(a)(1) extends the
applicability of the rule to include tank vessels greater than 100
gross tons but less than or equal to 300 gross tons, regardless of
whether it is transshipping or lightering oil. This provision expands
the population of vessels under 300 gross tons that are required to
establish and maintain evidence of financial responsibility under 33
U.S.C. 2716. The existing regulation includes any tank vessel using the
waters of the EEZ to transship or lighter oil destined for a place
subject to the jurisdiction of the United States, but if a tank vessel
is not engaged in transshipping or lightering, the existing regulation
has an exception for those that are 300 gross tons or less.
In Sec. 138.20(a)(2) through (a)(4), we extend the applicability
of the rule to include guarantors, responsible parties other than the
COFR Operator, and agents of process. This action is in accordance with
current practice.
Sec. 138.30 Definitions
We cross-referenced additional statutory and regulatory
definitions, added new regulatory definitions, amended regulatory
definitions, and removed definitions that were not used.
The following definitions reflect substantive changes from existing
regulations:
Applicant and certificant: We replaced the confusing terms
``applicant'' and ``certificant'' with the term ``COFR Operator''
throughout the COFR regulations. This action promotes consistency with
the COFR program's business practice that authorizes the COFR Operator
designated in the ``Application'' to represent the responsible parties
for purposes of compliance with the COFR program.
COFR Operator: We redefined ``COFR Operator'' to clarify when we
are referring to the operator who is liable in the event of an incident
or a release. We also replaced the previous term ``Operator'' with the
term ``responsible party.'' This rule defines the term ``responsible
party,'' for purposes of OPA 90 and CERCLA evidence of responsibility,
by cross-reference to the relevant statute, and includes all those
persons who meet the definition. This replacement of the term
``operator'' with the terms ``responsible party'' and ``COFR Operator''
makes clear that the designation of a ``COFR Operator'' to act on
behalf of the responsible parties for purposes of the COFR program does
not limit or preclude other responsible parties from being operators
within the meaning of OPA 90 or CERCLA. We also expressly clarify that,
when there is more than one responsible party, the COFR Operator is the
operator designated and authorized by all the vessel's responsible
parties to act on their behalf to comply with the COFR program.
Fleet Certificate and Individual Certificate: A new definition for
the term ``Fleet Certificate'' parallels the definition of ``Master
Certificate,'' and a new definition for the term ``Individual
Certificate,'' so that COFR regulations will include definitions for
all three types of Certificates issued by the Director.
Financial guarantor: We revise the definition to make clear that a
financial guarantor cannot also be a self-insurer of a vessel, but that
it is possible for the self-insurer of one vessel to be the financial
guarantor for a different vessel.
Owner: We remove the prior regulatory definition of ``owner.'' It
did not accurately reflect current law, and it was not clear that a
separate regulatory definition of ``owner'' is needed or helpful, as
both OPA 90 and CERCLA define the term ``owner'' and we now cross-
reference those definitions.
Tank vessel: We removed the regulatory definition of ``tank
vessel,'' cross-referencing the OPA 90 statutory definition in Sec.
138.30(a), and moved the exceptions to applicability to Sec.
138.20(d)(3).
Vessel: We removed the regulatory definition of ``vessel'' and
cross-reference in Sec. 138.30(a) the statutory definitions that
appear in OPA 90 and CERCLA. This is because there are slight
differences in the OPA 90 and CERCLA definitions, specifically in the
reference to public vessels in OPA 90. Therefore, although other
provisions of the existing COFR regulations resolve these differences,
we believe the better way to resolve the wording differences is to
cross-reference the statutory definitions. This approach ensures that
COFR-regulation definitions will always be consistent with OPA 90 and
CERCLA.
Sec. 138.50 How To Apply Vessel Gross Tonnages
The previous COFR regulations provided instructions to apply
different gross tonnage measurements for three different purposes: (1)
To determine whether a tonnage threshold applies; (2) to calculate a
vessel's OPA 90 and CERCLA applicable amounts of financial
responsibility; and (3) to determine the vessel's OPA 90 and COFR
limits of liability. However, these provisions were complex, and had
been difficult to apply, in part because they were developed and
established prior to the full coming into force of the International
Convention on Tonnage Measurement of Ships (June 23, 1969) on July 18,
1994. Furthermore, the 2010 Coast Guard Authorization Act included
amendments that updated, clarified, and eliminated inconsistencies in
the tonnage measurement law. The Coast Guard implemented these
amendments in the 2016 rule,\5\ which also incorporated changes to help
provide a suitable framework for tonnage-based regulations, allowing
the Coast Guard to specify tonnage thresholds more clearly. This rule
maintains the purposes of applying gross tonnage measurements explained
in the COFR regulations.
---------------------------------------------------------------------------
\5\ ``Tonnage Regulations Amendments'' final rule (81 FR 18701,
March 31, 2016).
---------------------------------------------------------------------------
This rule separates provisions for applying vessel gross tonnage in
Sec. 138.50 and clarifies and simplifies the language while conforming
with the 2016 amendments to the U.S. tonnage regulations. We added a
table to illustrate use of gross tonnages assigned under the two
overarching tonnage measurement systems provided for by U.S. law.\6\
---------------------------------------------------------------------------
\6\ These systems are under the Convention Measurement System,
which expresses gross tonnage as ``GT ITC,'' and the Regulatory
Measurement System, which expresses gross tonnage as ``GRT.''
---------------------------------------------------------------------------
[[Page 68129]]
In Sec. 138.50(f), regardless of the tonnage reported on the
Application, the appropriate tonnage-certifying document as provided
for under the U.S. tonnage regulations, such as a tonnage certificate
or completed Simplified measurement application, governs in determining
the evidence of financial responsibility applicable amounts, except
when the responsible parties or guarantors knew or should have known
that the applicable tonnage certificate was incorrect. In the event of
an oil pollution incident or hazardous substance release, the tonnage-
certifying document governs the applicable limit of liability. This
information is vital to the COFR program because the guaranty is to the
certified tonnage at the time of the incident, and addresses what
happens if a vessel undergoes a modification that affects the tonnage
after a COFR Operator submits an Application. This approach also
creates certainty by removing the implication that a tonnage re-
measurement at the time of an incident can supersede liability and
financial responsibility as reflected on the tonnage-certifying
document.
The addition in Sec. 138.50(g) also requires COFR Operators to
submit, upon request, the original or a copy of the tonnage certifying
document(s). The rule captures the fact that, in some circumstances,
vessels may be assigned tonnage under both measurement systems.
Sec. 138.60 Forms and Submissions; Ensuring Submission Timeliness
To remain consistent with current practice, Sec. 138.60(a) notes
that forms can be completed online or downloaded. This is the Coast
Guard's preference for submitting eCOFR Applications. If you submit
electronic images, please note that, currently, our system only accepts
the following imaging programs: PDF, JPEG, and TIFF. Because of delays
associated with mail processing and security, submission of forms by
mail is discouraged.
Section 138.60(c)(2) also removes the option for hand-delivering
submissions because of the prohibition of hand delivery under U.S.
Government mail security restrictions. Also, Sec. 138.60(e) makes
clear that the timeliness of submissions is solely the responsibility
of the person making the submission.
Section 138.60(e)(3) was revised after comment to continue waivers,
which permit the Director to grant an exception to a deadline for good
cause shown.
Sec. 138.70 Issuance and Renewal of COFR
Section 138.70(b) removes the express requirement to pay fees
before the issuance of a COFR. This reflects the NPFC's current
business practice when the COFR Operator submits the application via
fax or email.
Section 138.70(e) states that certain tonnage information will be
posted to the NPFC's COFR website, including the measurement system(s)
used, which under Sec. 138.80(a)(1), the applicant is required to
provide.
Sec. 138.80 Applying for COFRs
Section 138.80 reflects the removal of a requirement to pay fees
before the issuance of a COFR when Applications are submitted by email
or fax by cross-referencing Sec. 138.120's new paragraph (a)(3)(i)
that allows payment to be made within 21 days of the Application. This
allows flexibility for the Director to issue COFRs when the Application
is complete and evidence of financial responsibility has been
established, and before the NPFC receives payment. The COFR Operator
must, however, ensure the fees are paid within 21 days of submission of
the Application to avoid adverse consequences specified in Sec.
138.120(a)(4).
Section 138.80(a)(1)(i)(C) also clarifies that Master Certificates
do not name any specific vessel, but do state the maximum tonnages for
the largest vessel for which the COFR Operator may be responsible.
Without that requirement, we will not have a record of coverage if an
incident occurs in the intervening period between the Application and
the first periodic report of covered vessels.
Section 138.80(a)(1)(iv) requires the COFR Operator to include a
report with the Application providing information on the vessels
covered by the Master Certificate. The rule also explains what
information the COFR Operator must provide to the Director if a vessel
has been assigned tonnages under both measurement systems. The
inclusion of both assigned tonnages for vessels with more than one
should avoid delay of the application process and the effective date of
the guaranty.
Additionally, Sec. 138.80(a)(1)(iv)(B) requires that certain
Master Certificate application information be updated, including a
listing of vessels that are no longer covered. This establishes the
termination of the guaranty date. Finally, to assist in keeping this
information up to date, if during a 6-month reporting period a vessel
is transferred to another responsible party, the updated report must
list the date and place of transfer and the contact information of the
responsible party to whom the vessel was transferred.
Unlike the previous application instruction section, Sec. 138.60,
Sec. 138.80(d) does not require an original signature page for
applications submitted by email or fax. Instead, the COFR Operator may
submit a legible scan of the signature page.
Sec. 138.100 How To Calculate a Total Applicable Amount
Section 138.100(c) states that when statute or regulation adjusts
limits of liability, the COFR Operator must establish and maintain
evidence of financial responsibility in an amount equal to or greater
than the amended total applicable amount, as provided in Sec.
138.240(a).
Sec. 138.110 How To Establish and Maintain Evidence of Financial
Responsibility
The rule removes from the regulation the surety bond as a
specifically mentioned method for establishing and maintaining evidence
of financial responsibility. This method is still permitted as falling
under the ``other method'' provision in paragraph (f).
Section 138.110(a) explains that the guarantor continues to be
liable and must provide coverage for 30 days following NPFC receipt of
a notice of cancellation and not from the date the guarantor issues the
notice. The rule moves this provision previously contained on the COFR
guaranty forms into the regulation and reflects a current and important
NPFC business practice. The guarantor will provide the reason for
termination as part of its notice of cancellation, if known.
Additionally, Sec. 138.110(a) requires COFR Operators, guarantors, and
self-insurers to notify the Director of any material change in
submitted information, including any material change in the guarantor
or self-insurer's financial position. A material change is a change
that will affect the basis of the Director's approval of the guarantor
or evidence of financial responsibility. This notification is required
immediately when a change occurs, rather than within 10 days of the
change as specified in the previous rule.
Section 138.110(b) describes the current practice for establishing
and maintaining the acceptability of COFR insurance guarantors. This
will entail the guarantor submitting information on its structure,
business practices, history, financial strength, and other information
as requested by the Director. This process involves an initial
determination followed by annual submission by each COFR insurance
guarantor.
[[Page 68130]]
Section 138.110(c) clarifies the net worth and working capital
requirements for financial guarantors to reflect current practice.
Previously, the NPFC did not add the total applicable amount of each
vessel owned by one operator; rather, it based evidence of financial
responsibility on the operator's vessel with the greatest total
applicable amount. This rule requires net worth and working capital be
based on the aggregate total applicable amounts.
Section 138.110(f) changes the submission date for requesting
another guaranty method for establishing evidence of financial
responsibility from 45 to 90 days prior to the date the COFR is
required. The NPFC needs this additional 45 days to review the
financial documentation and communicate with the potential guarantor.
Sec. 138.120 Fees
Section 138.120 eliminates a previous requirement that the
application fee must be paid before the Director will issue a COFR.
This adds flexibility and convenience for COFR Operators, especially if
they are underway and want to enter U.S. navigable waters or U.S. EEZ.
It further explains that failure to pay fees in a timely manner may
result in denial or revocation of COFR, debt collection, or other
enforcement. Finally, it amends the fee refund procedures in the case
of overpayment. The Director will refund overpayments, because the NPFC
will not credit overpayments for the operator's future use or for
transfer to another operator anymore.
Sec. 138.130 Designating Agents for Service of Process
Section 138.130(d) shortens the notification period for a COFR
Operator or Guarantor to notify the Director of a new agent for service
of process from 10 days to 5 days. This shortened period reflects
efficiencies relating to electronic notifications in place of mailed
notifications.
Sec. 138.140 Application Withdrawals, COFR Denials and Revocations
Section 138.140 is revised to reflect current business practice. It
adds a provision noting that the COFR Operator, or anyone authorized to
act on their behalf, may withdraw an Application at any time before
issuance of the COFR. It also includes the failure to designate and
maintain a U.S. agent for service of process to the list of cases in
which the Director may deny an Application or revoke a COFR. The
section revision also clarifies that the Director may deny an
Application or revoke a COFR after obtaining additional information,
such as transfer to a new operator, vessel renaming, guaranty
termination or cancellation, or disapproval of the guarantor, and it
adds a duty to remedy violations where a COFR for a vessel expires.
Finally, it adds a provision specifying that where a COFR is revoked
because 30 days have elapsed following the date the Director receives a
guarantor's notice of termination, the Director may reinstate the COFR
if the guarantor promptly notifies the Director that the guarantor
rescinded the termination and there was no gap in coverage. This will
align the regulation to the COFR guaranty forms.
Sec. 138.150 Reporting Requirements
The rule merges reporting requirements into this one section. It
also revises the regulatory text to emphasize prior notices of changes
that will require a new COFR before the change occurs. Section 138.150
identifies the information that must be reported to the Director no
later than 21 business days before a new COFR is required for permanent
vessel transfers and other changes requiring issuance of a new COFR,
and information that need only be reported 3 business days before
implementing the change for changes not requiring issuance of a new
COFR. Changes that require issuance of a new COFR include, but are not
limited to: A permanent vessel transfer, change of COFR Operator,
vessel name change, change in the vessel's gross tonnage, or
termination of guaranty. As a result of comments, Sec. 138.150(d) was
revised to require that each guarantor (or, if there are multiple
guarantors, each lead guarantor) must give the Director 30 days notice
before terminating a guaranty as provided in Sec. 138.110(a)(3),
explaining the reason for the intended termination, once known, or
should have known, in the ordinary course of business. The further
requirement to give the Director notice before any other change occurs
that will require new evidence of financial responsibility or issuance
of a new COFR under paragraph (b) has been eliminated.
C. Removal of 33 CFR 138.90(f)
Existing paragraph Sec. 138.90(f) contains a non-regulatory
provision dealing with the temporary transfer of custody of an unmanned
barge that has a COFR issued under subpart A of part 138. The COFR
Operator who transfers the barge continues to be liable under OPA 90,
CERCLA, or both, and continues to maintain on file with the Director
acceptable evidence of financial responsibility with respect to the
barge. The provision encourages the temporary transferee to require the
transferring COFR Operator to acknowledge in writing that the
transferring COFR Operator agrees to remain responsible for pollution
liabilities. Since we received no adverse comments, we have removed
Sec. 138.90(f) because the existing COFR remains in effect in respect
to that vessel, and a temporary new COFR is not required.
D. Removal of 33 CFR Part 135 and Subpart D of 33 CFR Part 153
This document removes 33 CFR part 135 and subpart D of 33 CFR part
153 because OPA 90 repealed the legal authorities for them. These rules
are outdated and are removed.
V. Regulatory Analyses
We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on these statutes or Executive orders.
A. Regulatory Planning and Review
Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. The Office of Management and Budget (OMB) has not
designated this rule a significant regulatory action under section 3(f)
of Executive Order 12866. Accordingly, OMB has not reviewed it. A
regulatory analysis (RA) follows.
As explained in this section, this rule imposes some quantified
costs, and create qualitative benefits, which the Coast Guard believes
justifies the costs.
1. Analysis of Alternatives
Alternative 1: No action.
The ``No Action'' alternative makes no regulatory changes to the
evidence of financial responsibility regulations in 33 CFR part 138,
subpart A. The ``No Action'' alternative is not viable because the
statute requires evidence of financial responsibility regulations for
tank vessels greater than 100 gross tons but less than or equal to 300
gross tons. At a minimum, a regulation implementing this requirement is
required. This alternative reflects the status quo and
[[Page 68131]]
therefore has no regulatory cost or benefit.
Alternative 2: Promulgate evidence of financial responsibility
regulations for tank vessels greater than 100 gross tons but less than
or equal to 300 gross tons (statutory requirement).
Alternative 2 reflects the absolute minimum rulemaking effort to
address the statutory requirement in Section 712 of the Coast Guard
Authorization Act of 2010. However we did not choose this alternative
because, there are other aspects of the Coast Guard's evidence of
financial responsibility program that the Coast Guard wants to address
such as removing outdated regulatory text, providing updates that
reflect current practices and taking into account technological
improvements that will provide better clarity to the public as well as
reduce confusion. This alternative has the least net benefits of all of
the proposed alternatives. This alternative reflects the most costly
aspect of the rulemaking and is included in all of the proposed
alternatives because it is a statutory provision.
Alternative 3: Promulgate evidence of financial responsibility
regulations for tank vessels greater than 100 gross tons but less than
or equal to 300 gross tons (statutory requirement) and for deepwater
ports (discretionary requirement).
Alternative 3 adds promulgating evidence of financial
responsibility regulations for deepwater ports to Alternative 2. The
Coast Guard considered proposing financial responsibility regulations
for deepwater ports as part of this rulemaking. The deepwater port
industry is experiencing increased activity in the liquefied natural
gas deepwater port industry sector, raising questions about how
existing laws and policies regarding these facilities would apply.
These issues do not impact vessel evidence of financial responsibility,
however, and could create complexity and potentially delay the mandated
regulation of tank vessels greater than 100 gross tons but less than or
equal to 300 gross tons. In addition, currently only one liquefied
natural gas deepwater port is in operation and it uses less than 100
gallons of oil, whereas other designs might pose a greater risk of oil
spills. Additional time is necessary to analyze the effects of
liquefied natural gas regulation on the economy, maritime safety, and
the environment. The only other deepwater port in operation, an oil
deepwater port called the Louisiana Offshore Oil Port, is self-insured,
and provides evidence of financial responsibility sufficient to meet
its maximum liability under OPA 90 under grandfathered requirements of
the Deepwater Port Act of 1974.
After evaluating this alternative, the Coast Guard decided not to
develop deepwater port financial responsibility regulations at this
time. Postponing evidence of financial responsibility regulations for
deepwater ports will not impact maritime safety or the environment.
Currently, there is no established market that provides and maintains
evidence of financial responsibility for deepwater ports. If the market
decides to pursue these ventures in the future, the costs and benefits
will be analyzed accordingly as part of a future rulemaking.
Alternative 4 (Preferred alternative) Promulgate evidence of
financial responsibility regulations for tank vessels greater than 100
gross tons but less than or equal to 300 gross tons (statutory
requirement); require COFR Operators and guarantors to submit
additional information to the Coast Guard; make conforming amendments
reflect current practices (discretionary requirement); and remove
subpart D of 33 CFR part 153 D and 33 CFR part 135 from the CFR
(discretionary requirement).
Alternative 4 addresses the statutory requirement to require tank
vessels greater than 100 gross tons but less than or equal to 300 gross
tons to establish and maintain financial responsibility. It also
provides necessary updates to the current financial responsibility
regulations to reflect current practices that have evolved over the
past two decades, taking into account technological improvements as
well as changes in policy. Lastly, this alternative removes 33 CFR part
135 and subpart D of 33 CFR part 153, both of which regulate two
defunct funds, the OCSLA Fund and the 311(k) Fund.
In addition to the regulatory costs and benefits associated with
Alternative 2, this alternative adds two aspects with no cost:
Conforming regulations to current practice and removing two defunct
portions of the CFR, providing intangible benefits of eliminating
confusion for the public, as well as ensuring that the regulations
reflect how the Coast Guard's financial responsibility program
currently operates. Additionally, a small amount of regulatory cost is
associated with the requirement to require COFR Operators and
guarantors to provide additional information to the Coast Guard.
Although the benefits of this alternative are qualitative, they will
help to eliminate confusion and provide more clarity to the public
while providing much needed information to the Coast Guard.
2. Regulatory Changes
We are amending the vessel evidence of financial responsibility
regulations at 33 CFR part 138, subpart A, to:
1. Require financial responsibility to now include all tank vessels
greater than 100 gross tons but less than or equal to 300 gross tons.
2. Require additional information from the COFR Operator and
guarantor. The revisions include:
<bullet> Reporting of gross tonnage measurement system used and
submission of a copy of the tonnage certifying document, upon request;
<bullet> Electronic submissions;
<bullet> Reporting of reason for termination of guaranty by a
guarantor, if known; and
<bullet> Reporting vessel name change and increased reporting on
location of vessel when there is a change in ownership on date of
change.
3. Conform regulations to current practice. The revisions include:
<bullet> How to apply vessel gross tonnages;
<bullet> Removal of requirement to pay fees before issuance of a
COFR;
<bullet> Moving surety bond method to ``other methods'' for
establishing and maintaining evidence of financial responsibility;
<bullet> Clarification on continuation of guarantor's liability and
requirement to provide coverage for 30 days after cancellation of
guaranty; and
<bullet> Process for establishing and maintaining acceptability of
COFR insurance guarantors.
In addition, for the reasons discussed above, we are removing 33
CFR part 135 and subpart D of 33 CFR part 153 which concern management
of two defunct pollution funds.
Table 2 shows whether a category of regulatory amendments have a
regulatory cost, regulatory benefit, or both. Those amendments that
have a regulatory cost or benefit are discussed in detail following the
table.
[[Page 68132]]
Table 2--Summary of Regulatory Amendment Impacts
------------------------------------------------------------------------
Regulatory cost Regulatory benefit
------------------------------------------------------------------------
Require financial responsibility
for tank vessels greater than
100 gross tons but less than or
equal to 300 gross tons to
establish and maintain evidence
of financial responsibility
(Statutory):
Application and Yes Yes
certification costs.
COFR premium costs.......... Yes Yes
Require Additional Information
from the COFR Operator and
guarantor (Discretionary):
Reporting of gross tonnage Yes Yes
measurement systems used
and submission of a copy of
the tonnage certifying
document, upon request.
Electronic submissions...... No \7\ Yes
Reporting of reason for Yes Yes
termination of guaranty by
a guarantor.
Reporting vessel name change Yes Yes
and increased reporting on
location of vessel when
there is a change in
ownership on date of change.
Conform regulations to current
Practice (Discretionary):
How to apply vessel gross No Yes
tonnages.
Removal of requirement to No Yes
pay fees before issuance of
a COFR.
Moving Surety Bond method to No Yes
``other methods'' for
establishing and
maintaining evidence of
financial responsibility.
Clarification on No Yes
continuation of guarantor's
liability and requirement
to provide coverage for 30
days after cancellation of
guaranty.
Process for establishing and No Yes
maintaining acceptability
of COFR insurance
guarantors.
Removal of 33 CFR part 135 and
subpart D of 33 CFR part 153
(Discretionary):
Removal of 33 CFR part 135.. No \8\ Yes
Removal of subpart D of 33 No \9\ Yes
CFR part 153.
------------------------------------------------------------------------
3. Regulatory Costs
---------------------------------------------------------------------------
\7\ Electronic submissions creates cost savings.
\8\ Removal of superseded regulatory requirements have no cost.
The OCSLA Fund was subsumed by the Oil Spill Liability Trust Fund.
\9\ Removal of superseded regulatory requirements have no cost.
The 311(k) Fund was subsumed by the Oil Spill Liability Trust Fund.
---------------------------------------------------------------------------
There are two regulatory costs identified for this rule:
<bullet> Regulatory Cost 1: Require the additional tank vessels
greater than 100 gross tons but less than or equal to 300 gross tons to
establish and maintain evidence of financial responsibility (statutory
requirement).
<bullet> Regulatory Cost 2: Require additional information from the
COFR Operator and guarantor (discretionary requirement).
Discussion of Regulatory Cost 1
The rule requires tank vessels greater than 100 gross tons but less
than or equal to 300 gross tons to establish and maintain evidence of
financial responsibility.\10\ These vessels are required to have COFRs,
which results in two types of costs:
---------------------------------------------------------------------------
\10\ Regulatory Cost 1 does not include vessels greater than 300
gross tons that are already required to have a COFR.
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<bullet> Application and certification costs; and
<bullet> COFR premium costs.
Application and Certification Costs: In the first year of the
analysis period, the COFR Operator is required to pay an Application
fee of $200 and a Certification fee of $100 for each vessel requiring a
COFR. A new Certification fee is required every 3 years to renew the
COFR.
COFR Premium Costs: The additional operators of tank vessels
greater than 100 gross tons but less than or equal to 300 gross tons
have to establish and maintain evidence of financial responsibility
using one of these several methods: Insurance, Self-insurance, or
Financial Guaranty.\11\
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\11\ Historically, the surety bond method has been used in a
very few instances. This rule moves this method to the ``other
methods'' category of financial responsibility under Sec.
138.110(f).
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Affected Population: According to the Coast Guard's Marine
Information for Safety and Law Enforcement (MISLE) database, there are
an average of 465 tank vessels using U.S. navigable waters or U.S. EEZ
from 2016-2020 that are greater than 100 gross tons but less than or
equal to 300 gross tons. Table 3 shows the number of tank vessels
greater than 100 gross tons but less than or equal to 300 gross tons
per year (2016-2020). Note the data used for the NPRM was 2014-2018.
Hence the final rule has updated the data period to most current data.
Table 3--Number of Tank Vessels Greater Than 100 Gross Tons but Less
Than or Equal to 300 Gross Tons
------------------------------------------------------------------------
Number of
Year vessels
------------------------------------------------------------------------
2016.................................................... 477
2017.................................................... 474
2018.................................................... 474
2019.................................................... 449
2020.................................................... 449
---------------
Average (2016-2020)................................. 465
------------------------------------------------------------------------
[[Page 68133]]
Cost Summary Regulatory Cost 1
Application and Certification Costs: We assumed the number of
future COFR Applications and Certifications, based on the historical
average number of vessels in the population from 2016 to 2020 (465
vessels) are constant for the 10-year analysis period.\12\ We also
assumed that all vessels renew their COFRs every 3 years through the
full 10-year analysis period. In the first year of the analysis period,
COFR Operators pay an Application fee ($200) and a Certification fee
($100) when applying for a COFR for their vessels. Every 3 years
thereafter, COFR Operators pay a Certification fee ($100) when renewing
their COFRs. In the first year of the analysis period, the annual cost
is calculated by multiplying the number of vessels applying for COFRs
(465 vessels) by the cost of the Application ($200) and adding the
number of vessels requesting certification (465) multiplied by the cost
of certification ($100) to equal $139,500. Every third year thereafter,
the cost is calculated by multiplying the number of vessels (465)
requesting certification for renewal of their COFRs by the cost of the
certification ($100) to equal $46,500.
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\12\ This estimate, based on COFR trends for currently COFRed
vessels, was validated by subject matter expert in Coast Guard's
Vessel Certification Division.
---------------------------------------------------------------------------
COFR Premium Costs: It is possible for vessel operators to choose
to use the Self-insurance or Financial Guaranty methods of establishing
their evidence of financial responsibility, which allows them to use
their U.S. business assets. Alternatively, in the case of the Financial
Guaranty method, vessels may use the U.S. business assets of a parent,
affiliate, or special purpose company as evidence that they are capable
of paying for removal costs and damages up to the applicable limit of
liability. In those cases, they have made a business decision that the
cost of the assuming liability risk under OPA 90 is less than the
premium charged by commercial insurance companies. This assessment of
OPA 90 risk is company-specific and not quantifiable. Therefore, for
the purposes of this analysis, we have assumed that the responsible
parties use the Insurance method of establishing and maintaining their
evidence of financial responsibility. We received estimates of COFR
insurance premium amounts for tank vessels greater than 100 gross tons
but less than or equal to 300 gross tons from 4 COFR insurance
companies representing over 90 percent of existing COFRs.\13\ Based on
this survey of guarantors, we estimated that the premiums per vessel
range between $300 and $1,000 per year.
---------------------------------------------------------------------------
\13\ Source: NPFC's COFR database.
---------------------------------------------------------------------------
Vessel Premium Low Range Cost Estimate: The Coast Guard calculated
the vessel premium low range cost estimate by using the following
formula:
Number of vessels x cost of premium per vessel per year:
465 vessels x $300 per vessel per year = $139,500 per year
Vessel Premium High Range Cost Estimate: The Coast Guard calculated
the vessel premium high range cost estimate by using the following
formula:
Number of vessels x the cost of premium per vessel per year:
465 vessels x the $1,000 per vessel per year = $465,000 per year
Discussion of Regulatory Cost 2
This rule requires additional information from the COFR Operator
and guarantor that result in three types of costs:
<bullet> Reporting of gross tonnage measurement systems used and
submission of copy of tonnage certifying document, upon request;
<bullet> Reporting of reason for termination of guaranty by a
guarantor, if known; and
<bullet> Reporting vessel name change and increased reporting on
location of vessel when there is a change in ownership on date of
change.
Reporting of Gross Tonnage Measurement Systems Used and Submission
of a Copy of Tonnage Certifying Document, upon request--Affected
Population: All COFR Operators, including those for the tank vessels
greater than 100 gross tons but less than or equal to 300 gross tons,
will report the gross tonnage measurement systems used when applying
for and/or renewing a COFR. The Coast Guard's COFR database indicates
that there are 26,163 currently COFRed vessels. Adding the 465 COFRed
tank vessels greater than 100 gross tons but less than or equal to 300
gross tons in Regulation Cost 1, and assuming the number of COFRed
vessels remains constant during the analysis period, the total number
of COFRed vessels equals 26,628.
Master Certificate and Fleet Certificate holders also are required
to provide the gross tonnage measurement systems used for the largest
vessel covered by the Application. According to the COFR database,
there are currently 8 Master Certificates and 12 Fleet Certificates.
COFR Operators also provide a copy of the tonnage certifying
document, upon request. We assume that the Coast Guard may request a
copy of the tonnage certifying document when there is an incident.
According to incident data from the Coast Guard's Case Information
Management System (CIMS) database, there was an average of 12 incidents
per year involving vessels with COFRs and vessels that are required to
have COFRs under this rule over the five year period 2016-2020. We
assume that for the analysis period, the number of incidents remains
constant with this average.
Reporting of Reason for Termination of Guaranty by a Guarantor--
Affected Population: Based on NPFC Vessel Certification Program data on
the historical number of annual notices of guaranty termination by
guarantors, the Coast Guard estimates that there will be 4,000 per year
for the 10-year analysis period.
Reporting Vessel Name Change and Increased Reporting on Location of
Vessel When There is a Change in Ownership on Date of change--Affected
Population: Based on NPFC Vessel Certification Program historical data,
the Coast Guard estimates that there will be 1,000 submissions per
year.
Cost Summary Regulatory Cost 2
Reporting of Gross Tonnage Measurement Systems Used and Submission
of Copy of Tonnage Certifying Document, upon request: Reporting the
gross tonnage measurement systems used with the application and/or
requests for COFR renewal results in a negligible cost impact (less
than one minute of time) to the COFR Operator and is completed with the
Application for the COFR. We do not quantify this cost because it is
negligible.
Based on estimates received from COFR insurance guarantors who will
submit, upon request, a copy of the tonnage certifying document on
behalf of the COFR Operator, COFR Operators requires 15 minutes (0.25
hours) per submission.
Number of submissions per year x number of hours x the labor cost per
hour:
12 x 0.25 hours per submission = 3 hours
3 hours per year x $36.64 per hour \14\ = $110 per year
---------------------------------------------------------------------------
\14\ Total employer compensation costs for private industry
workers averaged, $36.64 per hour worked, found at Employer Costs
for Employee Compensation--March 2021 (<a href="http://bls.gov">bls.gov</a>). Bureau of Labor
Statistics Economic News Release Employer Costs for Employee
Compensation news release text. Thursday, March 18, 2021. This wage
rate was selected because it is the most general and reflects that
the person submitting the information could be any worker whether an
administrative assistant or a Chief Executive Officer of a company.
Note this wage was adjusted from the NPRM which used a hourly wage
rate from December 2017.
[[Page 68134]]
---------------------------------------------------------------------------
Reporting of reason for termination of guaranty by a guarantor: We
estimated that it will take 5 minutes (0.08 hours) for the guarantor to
add the reason why the guaranty was terminated to the information they
already provide to the Coast Guard when they terminate a guaranty.
Number of terminations per year x number of hours per submission x
labor cost per hour:
4,000 submissions per year x 0.08 hours per submission x $36.64 per
hour = $11,725 per year
Reporting Vessel Name Change and Increased Reporting on Location of
Vessel When There is a Change in Ownership on Date of Change: We
estimated that it takes an additional 5 minutes (0.08 hours) per
submission to provide additional information that is not already
required under the current rule.
Number of submissions per year x number of hours per submission x the
labor cost per hour:
1,000 submissions per year x the 0.08 hours/submission x the $36.64 per
hour \15\ = $2,931 per year
---------------------------------------------------------------------------
\15\ See footnote 8.
Present Value Regulatory Costs (Low Range): We estimated that the
10-year present value of the rule, at a 3-percent discount rate, is
$1.6 million. We estimated that the 10-year present value of the rule,
at a 7-percent discount rate, is $1.3 million. The estimated annualized
discounted cost of the rule, at a 3-percent discount rate, is $189,100.
The estimated annualized discounted cost of the rule, at a 7-percent
discount rate, is $191,100.
Present Value Regulatory Costs (High Range): We estimated the 10-
year present value of the rule, at a 3-percent discount rate, to be
$4.5 million. We estimated the 10-year present value of the rule, at a
7-percent discount rate, to be $3.7 million. The estimated annualized
discounted cost of the rule, at a 3-percent discount rate, is $525,800.
The estimated annualized discounted cost of the rule, at a 7-percent
discount rate, is $527,800.
4. Regulatory Benefits
There are four qualitative benefits identified for this rule:
<bullet> Regulatory Benefit 1: Require Tank Vessels Greater than
100 Gross Tons to 300 Gross Tons to Establish and Maintain Evidence of
Financial Responsibility (statutory requirement).
<bullet> Regulatory Benefit 2: Require additional information from
the COFR Operator and guarantor (discretionary requirement).
<bullet> Regulatory Benefit 3: Conform Regulations to Current
Practice (discretionary requirement).
<bullet> Regulatory Benefit 4: Removal of 33 CFR part 135 and
subpart D of 33 CFR part 153 (discretionary requirement).
Discussion of Regulatory Benefit 1
Oil pollution removal costs and damages for incidents have
substantially increased since 1990, even for relatively small-sized
discharges. When there is no evidence of financial responsibility, it
becomes more likely that the OSLTF will have to pay for at least some
of the costs resulting from the incident.\16\ When vessels have COFRs,
the incident cost amount paid by the responsible party is higher than
for vessels that do not have COFRs. This rule adds tank vessels greater
than 100 gross tons but less than or equal to 300 gross tons to the
vessels that are already required to establish and maintain evidence of
financial responsibility.
---------------------------------------------------------------------------
\16\ Lawrence I. Kiern, ``Liability, Compensation, and Financial
Responsibility Under the Oil Pollution Act of 1990: A review of the
Second Decade.'' 36 Tulane Maritime Law Journal. 23-24 (2011).
---------------------------------------------------------------------------
Of the 10,000 incidents sampled from the Coast Guard's CIMS
database during the ``1990 to 2020'' period, 4.99 percent were COFRed
vessels and 30.27 percent were non-COFRed vessels.\17\ Coast Guard CIMS
data show that the Coast Guard recovers 88.64 percent of costs when a
vessel was COFRed, and only 17.45 percent of costs when it was not
COFRed.
---------------------------------------------------------------------------
\17\ The remaining 64.74 percent of incidents were either
facility incidents or incidents where the Coast Guard could not
identify the source.
---------------------------------------------------------------------------
The requirement ensures that the costs are internalized because
parties responsible for oil spills are more fully responsible for
(moving from less than \1/3\ to nearly 100 percent) paying for the oil
pollution removal costs and damages and help correct this market
failure.\18\ Increased recovered cost rates shift the risk and actual
costs from the OSLTF to the polluting responsible party.
---------------------------------------------------------------------------
\18\ See OMB Circular A-4, page 4 dated September 17, 2003 for a
short discussion on market failures and externalities such as
environmental problems.
---------------------------------------------------------------------------
Discussion of Regulatory Benefit 2
Reporting of Gross Tonnage Measurement Systems Used and Submission
of copy of Tonnage Certifying Document, upon request: COFR Operators
must submit a copy of the tonnage certifying document upon request.
Providing this additional information with respect to gross tonnage
allows the Coast Guard to determine more effectively the limit of
liability and applicable amounts of financial responsibility for the
incident. In some cases, vessels have tonnage determined under more
than one measurement system, depending on a variety of factors,
including the vessel's flag, length, voyage type, keel laid, or
substantial alteration date, and whether it is self-propelled. This has
caused confusion with respect to which measurement system to use to
determine the limit of liability and amount of financial
responsibility.
Regardless of the tonnage reported on the Application, the tonnage
certifying document governs the required evidence of financial
responsibility and the limit of liability at the time of the incident
(except when the responsible parties or guarantors knew or should have
known that the tonnage certificate information was incorrect). Using
the tonnage certifying document provides the following benefits: (1) It
ensures that the Coast Guard has the most accurate tonnage
measurements; (2) it provides the method used to determine tonnage, as
well as the tonnage amount; (3) it provides information for foreign
flagged vessels that is oftentimes difficult to obtain; and (4) without
the applicable tonnage certifying document, if an incident occurred, a
re-measurement of tonnage could alter the already determined financial
responsibility and limit of liability.
Electronic submissions: The rule allows COFR Operators, guarantors,
and agents for service of process to submit signed scanned images,
emails, or faxes instead of hard copy signed-in-ink originals. The
Coast Guard receives approximately ten of the CG-5586 forms by mail
annually. Allowing electronic submissions creates minimal cost savings;
however, it provides increased flexibility to COFR Operators, and
enhances Coast Guard's recordkeeping goals. This works towards the
OMB's goal to maximize the use of electronic technology for collection
of information from the public, demonstrated in OMB memorandum M-19-21.
Reporting of reason for termination of guaranty by guarantor: The
rule requires the guarantor to include the reason for termination, if
known, with the notification for termination of the guaranty. This
information provides the Coast Guard with new information about the
COFR Operator in the event there is an incident.
Reporting vessel name change and increased reporting on location of
vessel when there is a change in ownership on date of change: The rule
ensures that the Coast Guard has the most current information when
initially issuing a COFR--especially concerning vessels that, over
time, become derelict while in
[[Page 68135]]
U.S. navigable waters or U.S. EEZ. The revisions also improve the Coast
Guard's ability to establish compliance with COFR regulations by more
effectively ensuring the responsible party is able to pay its liability
and mitigate risks to the OSLTF. For example, if a vessel is sold while
using a place subject to U.S. jurisdiction, the new responsible parties
become immediately subject to the COFR program. These changes are to
ensure that, while the Coast Guard still has regulatory authority over
a responsible party and the financial assurances of the guarantor, the
Coast Guard receives information relevant to continued compliance
before problems arise. However, enforcing compliance with the COFR
program's requirements depends on the Coast Guard knowing about the
vessel transfer. The regulatory revisions ensure that the Coast Guard
receives this information and to mitigate the risk of uninsured
responsible parties and derelict vessels.
Discussion of Regulatory Benefit 3
How to apply vessel gross tonnages: This rule updates and
simplifies the provisions respecting how to apply gross tonnage
measurement methods to reflect changes in the law since OPA 90 was
first enacted. This rule is consistent with the Coast Guard's tonnage
regulation at 46 CFR part 69 ``Tonnage Regulations Amendments'' (81 FR
18701, March 31, 2016). Hence the update on how gross tonnage
measurement is performed simplifies an administrative burden on the
COFR Operator.
Removal of requirement to pay fees before issuance of a COFR: The
rule allows the COFR Operator to pay the COFR Application and
Certification fees up to 21 days after submitting their COFR
Application. This adds flexibility and convenience for COFR Operators,
especially if they are underway and want to enter U.S. navigable waters
or U.S. EEZ.
Moving surety bond method to ``other methods'' for establishing and
maintaining evidence of financial responsibility: The rule no longer
specifically discusses the surety bond method in the regulations
because it is rarely, if ever, used. However, the surety bond method is
still available under the ``other methods'' provision in the rule.
Clarification on continuation of guarantor's liability and
requirement to provide coverage for 30 days after cancellation of
guaranty: The rule explains that the guarantor continues to be liable
and must provide coverage for 30 days following NPFC receipt of a
notice of cancellation. This requirement is currently contained on the
COFR form and reflects a current and important NPFC business practice.
Process for establishing and maintaining acceptability of COFR
insurance guarantors: The rule moves the current process for
establishing and maintaining acceptability of COFR insurance guarantors
into the regulations to make it more transparent to the public. The
Coast Guard's longstanding business practice under the existing COFR
regulations for determining the acceptability of guarantors is the
basis of the procedures set forth in the rule. The rule also provides a
process through which a COFR operator may provide new evidence of
financial responsibility and obtain approval or continuation of the
COFR where the Coast Guard disapproves a guarantor (for example, due to
guarantor fraud or financial failure). The provision applies to pending
Applications and following the issuance of a COFR.
Discussion of Regulatory Benefit 4
These regulations concern management of two pollution funds--the
Offshore Oil Pollution Compensation Fund and the FWPCA Section 311(k)
Fund. These provisions are no longer authorized. On November 1, 2011,
the Coast Guard published a notice of inquiry (76 FR 67385) soliciting
public comment on removing 33 CFR part 135 and we received no adverse
comments. This aspect of the rulemaking is necessary to remove
unauthorized regulatory requirements and to eliminate potential
confusion to the public.
B. Small Entities
Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have
considered whether this rule will have a significant economic impact on
a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
An Initial Regulatory Flexibility Analysis (IRFA) was developed in
the NPRM (85 FR 28802). There were no public comments received on the
IRFA.
The IRFA determined that there are two potential direct costs to
small entities that result from this rule:
<bullet> Regulatory Cost 1: Require Tank Vessels Greater than 100
Gross Tons to 300 Gross Tons to Establish and Maintain Evidence of
Financial Responsibility (Statutory Requirement).
<bullet> Regulatory Cost 2: Require Additional Information from
COFR Operators and Guarantors (Discretionary Requirement).
The number of small entities affected by Regulatory Cost 1 of the
rule and the respective impact on their annual revenue was determined
in the IRFA and is summarized in Table 4 below.
Table 4--Economic Impact to Small Entities--Regulatory Cost 1
------------------------------------------------------------------------
Number of Percent of
Percent of annual revenue small entities small entities
------------------------------------------------------------------------
1% to 2%................................ 0 0
<1%..................................... 117 100
------------------------------------------------------------------------
The number of small entities affected by Regulatory Cost 2 of the
rule and the respective impact on their annual revenue was determined
in the IRFA and is summarized in Table 5 below.
Table 5--Economic Impact to Small Entities--Regulatory Cost 2
------------------------------------------------------------------------
Number of Percent of
Percent of annual revenue small entities small entities
------------------------------------------------------------------------
1% to 2%................................ 0 0
<1%..................................... 652 100
------------------------------------------------------------------------
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this rule will not have a significant economic impact on a substantial
number of small entities.
C. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104-121, we offer to assist small
entities in understanding this rule so that they can better evaluate
its effects on them and participate in the rulemaking. The Coast Guard
will not retaliate against small entities that question or complain
about this rule or any policy or action of the Coast Guard.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
[[Page 68136]]
D. Collection of Information
This rule revises a previously approved collection of information
(OMB Control Number 1625-0046) under the Paperwork Reduction Act of
1995, 44 U.S.C. 3501-3520. As defined in 5 CFR 1320.3(c), ``collection
of information'' comprises reporting, recordkeeping, monitoring,
posting, labeling, and other similar actions. The title and description
of the information collections, a description of those who must collect
the information, and an estimate of the total annual burden follow. The
estimate covers the time for reviewing instructions, searching existing
sources of data, gathering and maintaining the data needed, and
completing and reviewing the collection.
Title: Financial Responsibility for Water Pollution (Vessels).
OMB Control Number: 1625-0046.\19\
---------------------------------------------------------------------------
\19\ <a href="https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201909-1625-002">https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201909-1625-002</a>.
---------------------------------------------------------------------------
Summary of the Collection of Information: This rule adds additional
collection of information requirements to existing OMB Control Number
1625-0046 for: COFR Operators to report gross tonnage and gross tonnage
measurement systems used, and submit a copy of their tonnage certifying
document, upon request; guarantors to report the reason for termination
of a guaranty; and COFR Operators to report vessel name changes and
increase reporting on location of vessel when there is a change in
ownership on date of change.
Need for Information:
Reporting of gross tonnage measurement systems used and submission
of copy of the tonnage certifying document, upon request.
Providing tonnage measurement systems used and submitting the
tonnage certifying document, upon request, in the rule, with respect to
gross tonnage allows the Coast Guard to determine more effectively the
limit of liability and applicable amounts of financial responsibility
for the incident. In some cases, the vessel may be assigned tonnage
under more than one measurement system depending on a variety of
factors including the vessel's flag, length, voyage type, keel laid, or
substantial alteration date, and whether it is a self-propelled vessel.
This has caused confusion with respect to which method to use to
determine limit of liability and amount of financial responsibility.
Regardless of the tonnage reported on the Application, the tonnage
certifying document governs the required evidence of financial
responsibility and the limit of liability at the time of the incident
(except when the responsible parties or guarantors knew or should have
known that the tonnage certifying document or certificate of registry
was incorrect). Using the tonnage certifying document provides the
following benefits: It ensures that the Coast Guard has the most
accurate tonnage measurements; it provides the method used to determine
tonnage, as well as the tonnage amount; it provides information for
foreign flagged vessels that is oftentimes difficult to obtain; and
without the applicable tonnage certifying document, if an incident
occurred, a re-measurement of tonnage could alter the already
determined financial responsibility and limit of liability.
Reporting of reason for termination of guaranty by a guarantor.
The rule requires that the guarantor include the reason for
termination, if known, with the notification for termination of the
guaranty. This information provides the Coast Guard with information
about the COFR Operator that otherwise is not known in the event there
is an incident.
Reporting vessel name change and increased reporting on location of
vessel when there is a change in ownership on date of change.
The additional collection of information in the rule ensures the
information the Coast Guard relies on when initially issuing a COFR is
up to date and remains current--especially concerning vessels that,
over time, become derelict while in U.S. navigable waters or U.S. EEZ.
The revisions also improve the Coast Guard's ability to establish
compliance with COFR regulations by more effectively ensuring that the
responsible party is able to pay its liability and mitigate risks to
the OSLTF. For example, if a vessel is sold while using a place subject
to U.S. jurisdiction, the new responsible parties become immediately
subject to the COFR program. These changes ensure that, while the Coast
Guard still has regulatory authority over a responsible party and the
financial assurances of the guarantor, the Coast Guard receives
information material to continued compliance before problems arise.
Enforcing compliance with the COFR program's requirements, however,
depends on the Coast Guard knowing about the vessel transfer. The
regulatory revisions seek to ensure that the Coast Guard receives this
information and to mitigate the risk of uninsured responsible parties
and derelict vessels.
Use of Information:
Reporting of gross tonnage measurement systems used and submission
of copy of the tonnage certifying document, upon request.
The Coast Guard uses the additional collection of information in
the rule to ensure that the gross tonnage of a vessel involved in an
incident is accurate to determine its limit of liability and applicable
amount of financial responsibility.
Reporting of reason for termination of guaranty by a guarantor.
The Coast Guard uses the additional collection of information in
the rule to learn more about a vessel and its COFR Operators in the
event of an incident. This new requirement to provide the reason for
guaranty termination will reduce the possibility that a guarantor will
cancel the guaranty to simply shield themselves from potential
liability in the event of an incident.
Reporting vessel name change and increased reporting on location of
vessel when there is a change in ownership on date of change.
The Coast Guard uses the additional collection of information in
the rule to identify a responsible party in the event there is an
incident.
Description of the Respondents: The respondents are COFR Operators
of vessels and OPA 90 COFR insurance guarantors.
Number of Respondents: The additional collection of information in
this rule affects 761 COFR Operators and 14 OPA 90 COFR insurance
guarantors.
Frequency of Response:
Reporting of gross tonnage measurement systems used and submission
of copy of the tonnage certifying document.
All COFR Operators, including those for the tank vessels greater
than 100 gross tons but less than or equal to 300 gross tons in this
rule, must report the gross tonnage measurement systems used when
applying for a COFR. The Coast Guard's COFR database indicates that
there are 26,163 currently COFRed vessels. Adding the 465 COFRed tank
vessels greater than 100 gross tons but less than or equal to 300 gross
tons in Regulation Cost 1, and assuming the number of COFRed vessels
remains constant during the analysis period the total number of COFRed
vessels equals 26,628.
Master Certificate and Fleet Certificate holders will also be
required to provide the gross tonnage measurement systems used for the
largest vessel covered by the Application.
The Coast Guard estimated that COFR Operators will provide
information on \1/3\ of the vessels with COFRs each year due to the 3-
year cycle of the Application process.
[[Page 68137]]
Individual Certificates--The Coast Guard's COFR database indicates
that, currently, there are 26,163 COFRed vessels. Adding the 465 COFRed
tank vessels greater than 100 gross tons to 300 gross tons in
Regulation Cost 1 equals 26,628 COFRed vessels.
26,628 COFRed vessels / 3 = 8,876 COFRed vessels per year that will
require the submission of the gross tonnage measurement systems used.
Masters Certificates--According to the COFR database, there are
currently 8 Master Certificates.
8 Master Certificates / 3 = 3 Master Certificates per year that
will require the submission of the gross tonnage measurement systems
used for the largest vessel covered by the Application.
Fleet Certificates--According to the COFR database, there are
currently 12 Fleet Certificates.
12 Fleet Certificates / 3 = 4 Fleet Certificates per year that will
require the submission of the gross tonnage measurement systems used
for the largest vessel covered by the Application.
COFR Operators will also provide a copy of the tonnage certifying
document, upon request. We assume that the Coast Guard will request a
copy of the tonnage certifying document when there is an incident.
According to incident data from the Coast Guard's CIMS database, there
are an average of 12 incidents per year involving vessels with COFRs
and vessels that will be required to have COFRs under this rule over
the five year period 2016-2020. We assume that for the analysis period,
the number of incidents will remain constant with this average.
Reporting of reason for termination of guaranty by a guarantor.
Based on NPFC Vessel Certification Program data on the historical
number of annual notices of guaranty termination by guarantors, the
Coast Guard estimates that there will be 4,000 vessels per year for the
10-year analysis period.
Reporting vessel name change and increased reporting on location of
vessel when there is a change in ownership on date of change.
Based on NPFC Vessel Certification Program historical data, the
Coast Guard estimates that there will be 1,000 submissions on vessel
name changes and change in location when there is a change in ownership
per year.
Burden of Response:
Reporting of gross tonnage measurement systems used and submission
of copy of the tonnage certifying document, upon request.
Reporting the gross tonnage measurement systems used with the
application and/or requests for COFR renewal will result in a
negligible burden (less than one minute of time) to the COFR Operator
and will be completed with the Application for or request for renewal
of the COFR.
Based on estimates received from COFR insurance guarantors who will
submit, upon request, a copy of the tonnage certifying document on
behalf of the COFR Operator, COFR Operators will require 15 minutes
(0.25 hours) per submission.
Reporting of reason for termination of guaranty by a guarantor.
The Coast Guard estimated that it will take 5 minutes (0.08 hours)
for the guarantor to add the reason why the guaranty was terminated to
the information they provide to the Coast Guard already when he or she
terminates a guaranty.
Reporting vessel name change and increased reporting on location of
vessel when there is a change in ownership on date of change.
The Coast Guard estimated that it will take an additional 5 minutes
(0.08 hours) per submission to provide additional information that is
not already required under the current rule.
Estimate of Total Annual Burden:
Reporting of gross tonnage measurement systems used and submission
of copy of the tonnage certifying document, upon request.
As stated above in the cost benefit analysis section of the
preamble, we do not quantify the cost impact of reporting the gross
tonnage measurement systems used because it is negligible and is
provided as part of the Application and/or request for COFR renewal.
The cost burden associated with COFR Operators providing, upon
request, their tonnage certifying document is calculated as follows:
Number submissions per year x Number of hours x labor cost per hour:
12 x 0.25 hours per submission = 3 hours
3 hours per year x $36.64 per hour = $110 per year
Reporting of reason for termination of guaranty by a guarantor.
Number of terminations per year x number of hours per submission x
labor cost per hour:
4,000 submissions per year x 0.08 hours per submission x $36.64 per
hour = $11,725 per year
Reporting vessel name change and increased reporting on location of
vessel when there is a change in ownership on date of change.
Number of submissions per year x number of hours per submission x labor
cost per hour:
1,000 submissions per year x 0.08 hours per submission x $36.64 per
hour = $2,931 per year
Summary of Information Collection Burden
Table 6 shows the incremental collection burden of the proposed
rule and the total proposed collection of information burden for OMB
Control Number 1625-0046.
Table 6--Incremental Collection of Information Burden of the Rule and
the Total Collection of Information Burden for OMB Control Number 1625-
0046
------------------------------------------------------------------------
Dollars
Hours (annual)
------------------------------------------------------------------------
Incremental Collection of Information of the Rule
------------------------------------------------------------------------
Reporting of gross tonnage measurement 3 $110
systems used, and submission of copy of
the tonnage certifying document........
------------------------------------------------------------------------
Reporting of reason for termination of 320 11,725
guaranty by a guarantor................
Reporting vessel name change and 80 2,931
increased reporting on location of
vessel when there is a change in
ownership on date of change............
-------------------------------
Total............................... 403 14,766
------------------------------------------------------------------------
[[Page 68138]]
Total Proposed Collection of Information for OMB Control Number 1625-
0046 (Approved Collection of Information + Incremental Collection of
Information of the Rule
------------------------------------------------------------------------
Approved Collection of Information OMB 3,400 88,500
Control Number-0046....................
------------------------------------------------------------------------
Incremental Collection of Information of 403 14,766
the Rule...............................
-------------------------------
Total............................... 3,803 103,266
------------------------------------------------------------------------
As required by 44 U.S.C. 3507(d), we will submit a copy of this
rule to OMB for its review of the collection of information.
You are not required to respond to a collection of information
unless it displays a currently valid OMB control number. OMB has not
yet completed its review of this collection. Before the Coast Guard
could enforce the collection of information requirements in this rule,
OMB would need to approve the Coast Guard's request associated with
this rule to collect this information. After OMB completes action on
our information collection request, we will publish a Federal Register
notice describing OMB's decision.
E. Federalism
A rule has implications for federalism under Executive Order 13132
(Federalism) if it has a substantial direct effect on States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under Executive Order 13132 and
have determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132. Our analysis follows.
It is well settled that States may not regulate in categories
reserved for regulation by the Coast Guard. It is also well settled
that the categories covered in 46 U.S.C. 3306, 3703, 7101, and 8101
(design, construction, alteration, repair, maintenance, operation,
equipping, personnel qualification, and manning of vessels), as well as
the reporting of casualties and any other category in which Congress
intended the Coast Guard to be the sole source of a vessel's
obligations, are within the field foreclosed from regulation by the
States. See the Supreme Court's decision in United States v. Locke and
Intertanko v. Locke, 529 U.S. 89, 120 S.Ct. 1135 (2000). Therefore,
because the States may not regulate within these categories, this rule
is consistent with the fundamental federalism principles and preemption
requirements described in Executive Order 13132. Our analysis follows.
This rulemaking is based on provisions in OPA 90 and CERCLA; 33
U.S.C. 2716 and 42 U.S.C. 9608, respectively. This rule amends Coast
Guard regulations on vessel evidence of financial responsibility and
removes certain unnecessary pollution fund regulations. The OPA 90
contains a savings clause that saves to the States the ability to
regulate activities contained in Title I of OPA 90, including vessel
evidence of financial responsibility requirements. See 33 U.S.C. 2718;
United States v. Locke and Intertanko v. Locke, 529 U.S. 89, 105, 120
S.Ct. 1135, 1146 (2000). Thus, nothing in this rule preempts states
from regulating vessel evidence of financial responsibility
requirements for oil pollution. However, CERCLA contains an express
preemption provision which prohibits States, except under limited
circumstances, from requiring vessels to establish or maintain evidence
of financial responsibility in connection with liability for the
release of a hazardous substance if those vessels maintain evidence of
the financial responsibility required under that subchapter (42 U.S.C.
9614(d)). Thus, except under limited circumstances, States cannot
regulate requirements for vessel evidence of financial responsibility
requirements for hazardous material pollution. The removal of 33 CFR
part 135 and subpart D of part 153 removes certain federal pollution
fund's regulatory requirements that were superseded by OPA 90 and
subsumed by the OSLTF. As the rule clarifies but does not alter the
existing, applicable federal law relating to pollution funds, it will
not have preemptive impact. Therefore, this rule is consistent with the
fundamental federalism principles and preemption requirements described
in Executive Order 13132.
F. Unfunded Mandates
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538,
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Although this rule will not result
in such expenditure, we do discuss the effects of this rule elsewhere
in this preamble.
G. Taking of Private Property
This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630 (Governmental
Actions and Interference with Constitutionally Protected Property
Rights).
H. Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988 (Civil Justice Reform) to minimize litigation,
eliminate ambiguity, and reduce burden.
I. Protection of Children
We have analyzed this rule under Executive Order 13045 (Protection
of Children from Environmental Health Risks and Safety Risks). This
rule is not an economically significant rule and will not create an
environmental risk to health or risk to safety that might
disproportionately affect children.
J. Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175 (Consultation and Coordination with Indian Tribal Governments),
because it will not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and
[[Page 68139]]
responsibilities between the Federal Government and Indian tribes.
K. Energy Effects
We have analyzed this rule under Executive Order 13211 (Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use). We have determined that it is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' under Executive Order 12866 and is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
L. Technical Standards
The National Technology Transfer and Advancement Act, codified as a
note to 15 U.S.C. 272, directs agencies to use voluntary consensus
standards in their regulatory activities unless the agency provides
Congress, through OMB, with an explanation of why using these standards
will be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g.,
specifications of materials, performance, design, or operation; test
methods; sampling procedures; and related management systems practices)
that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
M. Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 023-01, Rev. 1, associated implementing
instructions, and Environmental Planning COMDTINST 5090.1 (series),
which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made
a determination that this action is one of a category of actions that
do not individually or cumulatively have a significant effect on the
human environment. A Record of Environmental Consideration supporting
this determination is available in the docket. For instructions on
locating the docket, see the ADDRESSES section of this preamble. This
rule is categorically excluded under paragraph L53 of Appendix A, Table
1 of DHS Instruction Manual 023-01-001-01, Rev 1. Paragraph L53
pertains to congressionally mandated regulations designed to improve or
protect the environment. This rule involves expanding vessel financial
responsibility to include tank vessels greater than 100 gross tons but
less than or equal to 300 gross tons, clarifying and updating the
rule's reporting requirements, conforming the rule to current practice,
and removing two superseded regulations.
List of Subjects
33 CFR Part 135
Administrative practice and procedure, Continental shelf,
Insurance, Oil pollution, Reporting and recordkeeping requirements.
33 CFR Part 138
Hazardous materials transportation, Insurance, Oil pollution,
Reporting and recordkeeping requirements, Vessels, Water pollution
control.
33 CFR Part 153
Hazardous substances, Oil pollution, Reporting and recordkeeping
requirements, Water pollution control.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR chapter 1 as follows:
PART 135--[REMOVED]
0
1. Under the authority of 14 U.S.C. 503, part 135 is removed.
PART 138--EVIDENCE OF FINANCIAL RESPONSIBILITY FOR WATER POLLUTION
(VESSELS) AND OPA 90 LIMITS OF LIABILITY (VESSELS, DEEPWATER PORTS
AND ONSHORE FACILITIES)
0
2. The authority citation for part 138 is revised to read as follows:
Authority: 6 U.S.C. 552(d); 33 U.S.C. 2704, 2716, 2716a; 42
U.S.C. 9608, 9609; E.O. 12580, Sec. 7(b), 3 CFR, 1987 Comp., p. 193;
E.O. 12777, Secs. 4 and 5, 3 CFR, 1991 Comp., p. 351, as amended by
E.O. 13286, Sec. 89, 3 CFR, 2004 Comp., p. 166, and by E.O. 13638,
Sec. 1, 3 CFR, 2014 Comp., p.227; Department of Homeland Security
Delegation Nos. 00170.1, Revision 01.2 and 5110, Revision 01.
Section 138.40 also issued under the authority of 46 U.S.C. 2103 and
14302.
0
3. Revise the part heading to read as set forth above.
0
4. Revise subpart A to read as follows:
Subpart A--Evidence of Financial Responsibility for Water Pollution
(Vessels)
Sec.
138.10 Scope and purpose.
138.20 Applicability.
138.30 Definitions.
138.40 General requirements.
138.50 How to apply vessel gross tonnages.
138.60 Forms and submissions; ensuring submission timeliness.
138.70 Issuance and renewal of COFRs.
138.80 Applying for COFRs.
138.90 Renewing COFRs.
138.100 How to calculate a total applicable amount.
138.110 How to establish and maintain evidence of financial
responsibility.
138.120 Fees.
138.130 Agents for Service of process.
138.140 Application withdrawals, COFR denials and revocations.
138.150 Reporting requirements.
138.160 Non-owning COFR Operator's responsibility for
identification.
138.170 Enforcement.
Subpart A--Evidence of Financial Responsibility for Water Pollution
(Vessels)
Sec. 138.10 Scope and purpose.
(a) Scope. This subpart sets forth--
(1) The requirements and procedures each COFR Operator (as defined
in Sec. 138.30(b)) must use to establish and maintain the evidence of
financial responsibility required by the OPA 90 and CERCLA (both
defined in Sec. 138.30), and to obtain Certificates of Financial
Responsibility (COFR);
(2) The standards and procedures the Coast Guard uses to determine
the acceptability of guarantors;
(3) The procedures guarantors must use to submit evidence of
financial responsibility on behalf of the responsible parties for
vessels to which this subpart applies;
(4) The requirements for designating and maintaining U.S. agents
for service of process;
(5) The requirements for reporting changes affecting compliance
with this subpart; and
(6) The enforcement actions that may result from non-compliance
with this subpart or OPA 90, CERCLA, or both, referenced in paragraph
(a)(1) of this section.
(b) Purpose. These requirements ensure that the responsible parties
for vessels to which this subpart applies, have sufficient available
financial resources to cover their potential liabilities to the United
States and other claimants in the following scenarios:
(1) Under OPA 90 in the event of a discharge, or substantial threat
of a discharge, of oil; and
(2) In the case of vessels greater than 300 gross tons, under
CERCLA in the event of a release, or threatened release, of a hazardous
substance.
Sec. 138.20 Applicability.
(a) Applicability generally. This subpart applies--
(1) To the COFR Operator of--
(i) Any vessel over 300 gross tons (except a vessel listed in
paragraph (d)(1) or (2) of this section) using the navigable waters of
the United States, or any port or other place subject to the
[[Page 68140]]
jurisdiction of the United States, including any such vessel using a
deepwater port or other offshore facility subject to the jurisdiction
of the United States;
(ii) Any vessel of any size (except a vessel listed in paragraph
(d)(1) or (3) of this section) using the waters of the Exclusive
Economic Zone to transship or lighter oil (whether delivering or
receiving) destined for a place subject to the jurisdiction of the
United States; and
(iii) Any tank vessel over 100 gross tons (except a vessel listed
in paragraph (d)(1) or (3) of this section) using the navigable waters
of the United States, or any port or other place subject to the
jurisdiction of the United States, including any such tank vessel using
a deepwater port or other offshore facility subject to the jurisdiction
of the United States;
(2) To a guarantor providing evidence of financial responsibility
under this subpart on behalf of one or more of a vessel's responsible
parties;
(3) To responsible parties other than the COFR Operator designated
to represent the responsible parties for purposes of this subpart; and
(4) To any person serving as a U.S. agent for service of process
under this subpart.
(b) How to apply this part to mobile offshore drilling units. For
the purposes of applying the evidence of financial responsibility
required under OPA 90 and this subpart and the limits of liability set
forth in subpart B of this part, and in addition to any OPA 90 offshore
facility evidence of financial responsibility requirements that may
apply under 30 CFR part 553, a mobile offshore drilling unit is treated
as--
(1) A tank vessel when it is being used as an offshore facility;
and
(2) A vessel other than a tank vessel when it is not being used as
an offshore facility.
(c) How to apply CERCLA evidence of financial responsibility to
self-propelled vessels. For the purposes of applying the evidence of
financial responsibility required under CERCLA and for vessels
identified in paragraph (a)(1)(i) of this section, this subpart applies
to a self-propelled vessel over 300 gross tons even if it does not
carry hazardous substances.
(d) Exceptions. (1) This subpart does not apply to public vessels.
(2) Paragraph (a)(1)(i) of this section does not apply to any non-
self-propelled barge that does not carry oil as cargo or fuel and does
not carry hazardous substances as cargo.
(3) Paragraphs (a)(1)(ii) and (iii) of this section do not apply
to: any offshore supply vessel; any fishing vessel or fish tender
vessel of 750 gross tons or less that transfers fuel without charge to
a fishing vessel owned by the same person; any towing or pushing vessel
(tug) simply because it has in its custody a tank barge; or any tank
vessel that only carries, or is adapted to carry, non-liquid hazardous
material in bulk as cargo or cargo residue.
Sec. 138.30 Definitions.
(a) As used in this subpart, the following terms have the meanings
set forth in--
(1) OPA 90 (specifically in 33 U.S.C. 2701): Claim, claimant,
damages, deepwater port, discharge, Exclusive Economic Zone, facility,
incident, liable or liability, mobile offshore drilling unit, navigable
waters, offshore facility, oil, owner or operator, person, remove,
removal, removal costs, responsible party, tank vessel, United States,
and vessel; and
(2) CERCLA (42 U.S.C. 9601): Claim, claimant, damages, facility,
hazardous substance, liable or liability, navigable waters, offshore
facility, owner or operator, person, remove, removal, United States,
and vessel.
(3) 46 CFR 69.9: Convention Measurement System, foreign-flag
vessel, gross tonnage ITC (GT ITC) \1\ and gross register tonnage
(GRT), tonnage, and U.S.-flag vessel.
---------------------------------------------------------------------------
\1\ The acronym ``ITC'' refers to the International Tonnage
Convention. GT ITC, as defined in 46 CFR 69.9 means the gross
tonnage measurement of a vessel as applied under the Convention
Measurement System.
---------------------------------------------------------------------------
(b) As used in this subpart--
Applicable amount means an OPA 90 or CERCLA evidence of financial
responsibility amount determined to apply to a vessel as provided under
Sec. 138.100.
Application means an ``Application for Vessel Certificate of
Financial Responsibility (Water Pollution)'', which the COFR Operator
for one or more vessels has completed and verified in eCOFR, as
provided in Sec. 138.60(c)(1)(i), or signed, dated, and submitted to
the NPFC by one of the submission methods specified in Sec.
138.60(c)(1)(ii) through (iv).
Cargo means goods or materials carried on board a vessel for
purposes of transportation, whether proprietary or nonproprietary. A
hazardous substance or oil carried solely for use aboard the carrying
vessel is not cargo.
CERCLA means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9601, et
seq.).
COFR means a current Certificate of Financial Responsibility (Water
Pollution) issued by the Director, under this subpart, as provided in
Sec. 138.70, and posted on the NPFC COFR program website <a href="https://npfc.uscg.mil/cofr/default.aspx">https://npfc.uscg.mil/cofr/default.aspx</a>.
COFR Operator means a responsible party who conducts, or has
responsibility for, the operation of a vessel to which this subpart
applies--that is, a person who is an operator as defined in OPA 90 and
CERCLA, and, when there is more than one responsible party (including
more than one operator), is the operator designated and authorized by
all the vessel's responsible parties to act on their behalf for the
purpose of complying with this subpart, including submitting (or
causing to be submitted) all Applications and requests for COFR
renewal, evidence of financial responsibility and reports, and payment
of all fees required by Sec. 138.120.
(i) If a vessel has one owner and is operated by that owner, or the
owner controls and is responsible for the vessel's operation, the owner
is the COFR Operator. In all other cases the person who operates, or
controls and is principally responsible for the operation of, the
vessel (for example, the demise charterer) is the COFR Operator.
(ii) A person who is responsible, or who agrees by contract to
become responsible, for a vessel in the capacity of a builder,
repairer, or scrapper, or for the purpose of holding the vessel out for
sale or lease, is the COFR Operator. A person who takes possession of,
or responsibility for, a newly built, modified, or repaired vessel from
a builder or repairer, or who purchases and operates or becomes a
demise charterer of a vessel held out for sale or lease, is the COFR
Operator.
(iii) A time or voyage charterer who does not assume responsibility
for the operation of a vessel is not a COFR Operator for purposes of
this subpart.
(iv) The designation of an operator to act as the COFR Operator on
behalf of a vessel's responsible parties for purposes of this subpart
does not limit who may be determined to be an operator under OPA 90,
CERCLA, or both, in the event of an incident or a release.
Day or days means calendar days unless otherwise specified.
Director means the person in charge of the U.S. Coast Guard,
National Pollution Funds Center (NPFC), or that person's authorized
representative.
eCOFR means the electronic Certificate of Financial Responsibility
web-based process located on the NPFC COFR program website, <a href="https://npfc.uscg.mil/cofr/default.aspx">https://npfc.uscg.mil/cofr/default.aspx</a>, and is
[[Page 68141]]
the process COFR Operators may use to apply for and renew COFRs.
Evidence of financial responsibility means the demonstration of the
financial ability of the responsible parties for a vessel to which this
subpart applies to meet their potential liabilities under OPA 90,
CERCLA, or both, up to the total applicable amount determined as
provided under Sec. 138.100.
Financial guarantor is a type of guarantor and means a business
entity or other person providing a financial guaranty under Sec.
138.110(c). A financial guarantor is distinct from a COFR insurance
guarantor, a self-insurer, or a surety. A self-insurer, however, may
also serve as a financial guarantor for others.
Fish tender vessel and fishing vessel have the same meanings as set
forth in 46 U.S.C. 2101.
Fleet Certificate means a COFR issued by the Director under this
subpart to the COFR Operator of a fleet of 2 or more unmanned, non-
self-propelled barges that are not tank vessels and that, from time to
time, may be subject to this subpart (for example, a hopper barge over
300 gross tons when carrying oily metal shavings or similar cargo). A
Fleet Certificate covers, automatically, all unmanned, non-self-
propelled, non-tank barges for which the COFR Operator may from time to
time be responsible that does not exceed the maximum gross tonnage
indicated on the Fleet Certificate.
Fuel means any oil or hazardous substance used, or capable of being
used, to produce heat or power by burning, including power to operate
equipment. A hand-carried pump with no more than 5 gallons of fuel
capacity, that is neither integral to nor regularly stored aboard a
non-self-propelled barge, is not equipment.
Guarantor means any person who has been determined to be acceptable
by the Director, as provided in Sec. 138.110, and who is providing
evidence of financial responsibility on behalf of one or more of a
vessel's responsible parties, other than as a responsible party
providing self-insurance under Sec. 138.110(d).
Hazardous material has the same meaning as set forth in 46 U.S.C.
2101.
Individual Certificate means a COFR issued by the Director under
this subpart to the COFR Operator for a single vessel.
Insurance guarantor is a type of guarantor and means an insurance
company, association of underwriters, ship owners' protection and
indemnity association, or other person, serving as a guarantor under
Sec. 138.110(b). An insurance guarantor is distinct from a self-
insurer, a financial guarantor, or a surety.
Master Certificate means a COFR issued by the Director under this
subpart to the COFR Operator of one or more vessels that are under the
custody of such person solely in the capacity of a builder, repairer,
or scrapper, or for the purpose of holding vessels out for sale or
lease, where such person does not physically operate the vessels. A
Master Certificate covers, automatically, all of the vessels subject to
this subpart held by the COFR Operator solely for purposes of
construction, repair, scrapping, sale or lease. A vessel which is being
operated commercially in any business venture, including the business
of building, repairing, scrapping, leasing, or selling (for example, a
slop barge used by a shipyard) cannot be covered by a Master
Certificate and must have either a current Individual Certificate or,
if applicable, a current Fleet Certificate.
Net worth means the amount of all assets located in the United
States, less all liabilities anywhere in the world.
NPFC means the U.S. Coast Guard, National Pollution Funds Center.
NPFC is the U.S. Government office responsible for administering the
OPA 90 and CERCLA vessel COFR program.
Offshore supply vessel has the same meaning as set forth in 46
U.S.C. 2101.
OPA 90 means the Oil Pollution Act of 1990, as amended (33 U.S.C.
2701, et seq.).
Public vessel means a vessel owned or demise chartered and operated
by the United States, by a State or political subdivision thereof, or
by a foreign nation, except when the vessel is engaged in commerce.
Release, for purposes of this subpart, means a release as defined
in CERCLA (specifically, 42 U.S.C. 9601), or a threatened release, of a
hazardous substance.
Responsible party, for purposes of OPA 90 evidence of financial
responsibility, has the same meaning as defined at 33 U.S.C. 2701; and,
for purposes of CERCLA evidence of financial responsibility, means any
person who is an ``owner or operator,'' as defined at 42 U.S.C. 9601,
including any person chartering a vessel by demise.
Self-insurer means a COFR Operator providing evidence of financial
responsibility as the responsible party of the subject vessel, as
provided under Sec. 138.110(d). A self-insurer is distinct from a
guarantor.
Total applicable amount means an evidence of financial
responsibility amount that must be demonstrated under this subpart,
determined as provided in Sec. 138.100.
Working capital means the amount of current assets located in the
United States, less all current liabilities anywhere in the world.
Sec. 138.40 General requirements.
(a) Requirement to establish and maintain evidence of financial
responsibility. The COFR Operator of a vessel must establish and
maintain (or cause to be established and maintained) evidence of
financial responsibility acceptable to the Director using any one of
the methods specified in Sec. 138.110, in an amount equal to or
greater than the total applicable amount determined under Sec. 138.100
and, in the case of a financial guarantor, as further provided under
Sec. 138.110(c)(2) (aggregation of total applicable amounts). The
evidence of financial responsibility required by this paragraph must
be--
(1) Established as of the date they become a responsible party; and
(2) Continuously maintained for so long as they remain a
responsible party.
(b) Requirement to have a COFR and report changes. The COFR
Operator must apply for and ensure the vessel is covered at all times
by a current COFR, by complying with the requirements and procedures
set forth in this subpart, including the reporting requirements in
Sec. 138.150.
Sec. 138.50 How to apply vessel gross tonnages.
(a) Purpose. This section sets forth the methods for applying
vessel gross tonnage to--
(1) Determine whether a vessel exceeds the 100 or 300 gross ton
threshold under Sec. 138.20 and OPA 90, CERCLA, or both;
(2) Calculate the OPA 90 and CERCLA applicable amounts of financial
responsibility required, as provided in Sec. 138.100; and
(3) Determine the OPA 90 limit of liability under subpart B of this
part in the event of an oil pollution incident, and the CERCLA limit of
liability under 42 U.S.C. 9607 in the event of a hazardous substance
release.
(b) Both GT ITC and GRT assigned. For a vessel assigned both gross
tonnage ITC (GT ITC) and gross register tonnage (GRT) under 46 CFR part
69, apply the tonnage thresholds in Sec. 138.20 using the assigned GRT
tonnage, and determine the applicable amounts of financial
responsibility and the limits of liability using the assigned GT ITC
tonnage.
(c) GT ITC or GRT assigned. For a vessel assigned only a GT ITC or
a GRT tonnage under 46 CFR part 69, apply the tonnage thresholds in
Sec. 138.20, and
[[Page 68142]]
determine the applicable amounts of evidence of financial
responsibility and the limits of liability using the assigned GT ITC or
GRT tonnage.
(d) High or low GRT assigned. For a vessel assigned a high and low
GRT tonnage under 46 CFR part 69, subpart D (Dual Regulatory
Measurement System), apply the tonnage thresholds in Sec. 138.20, and
determine the applicable amounts of financial responsibility and the
limits of liability, using the high GRT tonnage.
(e) Summary. The use of assigned gross tonnages, as required by
paragraphs (b) through (d) of this section, is summarized in the
following table.
Table 1 to Sec. 138.50(e)--Use of Assigned Gross Tonnages
----------------------------------------------------------------------------------------------------------------
Assigned tonnage
---------------------------------------------------------------------------------
Category To apply the tonnage thresholds in Sec. To determine applicable amounts under
138.20 Sec. 138.100 and limits of liability
----------------------------------------------------------------------------------------------------------------
Vessels Assigned Both GT ITC GRT.................................... GT ITC.
and GRT.
Vessels Assigned--
GT ITC only............... GT ITC................................. GT ITC.
GRT only...................... GRT.................................... GRT.
----------------------------------------------------------------------------------------------------------------
(f) Certified gross tonnage governs. In the event of an incident or
release, the responsible parties and guarantors are governed by the
vessel's assigned gross tonnage on the date of the incident. This is as
determined under paragraphs (b) through (e) of this section and
evidenced on the appropriate tonnage certifying document as provided
for under the U.S. tonnage regulations or international conventions
(for example, tonnage certificate or completed Simplified measurement
application, International Tonnage Certificate (1969)), regardless of
what gross tonnage is specified in the Application or guaranty form
submitted under this subpart, except when the responsible parties or
guarantors knew or should have known that the tonnage certificate
information was incorrect (see also Sec. 138.110(h)(1)(iii)).
(g) Requirement to present tonnage certifying document(s). Each
COFR Operator must submit to the Director, or other authorized United
States Government official, upon request, for examination and copying,
the original or an unaltered and legible electronic copy of the
vessel's applicable tonnage certifying document(s).
Sec. 138.60 Forms and submissions; ensuring submission timeliness.
(a) Where to obtain forms. All forms referred to in this subpart
are available at the NPFC COFR program website, <a href="https://npfc.uscg.mil/cofr/default.aspx">https://npfc.uscg.mil/cofr/default.aspx</a>, and may be completed online or downloaded.
(b) Where to obtain information. Direct all questions concerning
the requirements of this subpart to the NPFC at one of the addresses in
paragraphs (c)(1)(ii) through (iv) of this section or by calling the
NPFC at 202-795-6130.
(c) How to present Applications and other required submissions. (1)
Provide all submissions required by this subpart to the Director, by
one of the following four methods:
(i) Electronically, using the eCOFR process (located at <a href="https://npfc.uscg.mil/cofr/default.aspx">https://npfc.uscg.mil/cofr/default.aspx</a>);
(ii) By email, sent to such email address as the Director may
specify, attaching legible electronic images scanned in a format
acceptable to the Director;
(iii) By fax, sent to 202-795-6123 with a cover sheet specifying
the total number of pages, the sender's telephone number, and
referencing NPFC telephone number 202-795-6130; or
(iv) By mail, addressed to--
Director, National Pollution Funds Center, ATTN: VESSEL
CERTIFICATION, U.S. Coast Guard Stop 7605, 2703 Martin Luther King Jr.
Ave. SE, Washington, DC 20593-7605.
(2) Submissions may not be hand delivered to the NPFC.
(3) Do not present submissions by more than one method.
(d) Required contents of submissions. Unless otherwise instructed
by the Director, all submissions required by this subpart must--
(1) Set forth, in full, the correct legal name of the COFR Operator
to whom the COFR is to be, or has been, issued;
(2) Be in English, and
(3) Express all monetary terms in United States dollars.
(e) Ensuring the timeliness of submissions; requesting deadline
exceptions. (1) Compliance with a submission deadline will be
determined based on the day the submission is received by NPFC. If a
deadline specified in this subpart falls on a weekend or Federal
holiday, the deadline will occur on the next business day.
(2) Ensuring the timeliness of the submissions is the sole
responsibility of the person making the submission.
(3) The Director may, in the Director's sole discretion, grant an
exception to a deadline specified in this subpart for good cause shown.
(f) Public access to information. Financial data and other
information submitted to the Director is considered public information
to the extent required by the Freedom of Information Act (5 U.S.C. 552)
and permitted by the Privacy Act (5 U.S.C. 552(a)).
Sec. 138.70 Issuance and renewal of COFRs.
(a) Types of COFRs. The Director issues the following three types
of COFRs as provided further in Sec. 138.80: Individual Certificates,
Fleet Certificates and Master Certificates.
(b) Requirements before issuance and renewal of COFRs. The Director
will issue or renew a COFR only after NPFC receives a completed
Application or request for COFR renewal, and satisfactory evidence of
financial responsibility.
(c) COFRs are issued only to designated COFR Operators. Each COFR
of any type is issued only in the name of the COFR Operator designated
in the Application or request for COFR renewal.
(d) Form of issuance. All COFRs are issued by the Director in
electronic form on NPFC's COFR program website (<a href="https://npfc.uscg.mil/cofr/default.aspx">https://npfc.uscg.mil/cofr/default.aspx</a>) for a term of no more than 3 years from the date of
issuance.
(e) Information included in COFRs. The following information is
available on NPFC's COFR program website for each COFR issued by the
Director:
(1) The name of the COFR Operator;
(2) The date of COFR expiration;
(3) The COFR number;
(4) For an Individual Certificate, the name of the covered vessel,
and the
[[Page 68143]]
vessel's gross tonnage information, including the measurement system(s)
used;
(5) For a Fleet Certificate, the gross tons of the largest
unmanned, non-self-propelled, non-tank barge within the fleet,
including the measurement systems(s) used; and
(6) For a Master Certificate, the gross tons of the largest tank
vessel and largest vessel other than a tank vessel eligible for
coverage by the Master Certificate, including the measurement
systems(s) used.
Sec. 138.80 Applying for COFRs.
(a) How to apply for a COFR. To apply for a COFR of any type, the
COFR Operator must--
(1) Submit, or cause to be submitted, to the Director, by one of
the submission methods provided in Sec. 138.60(c):
(i) An Application;
(A) For an Individual Certificate, list the name of the covered
vessel, and the vessel's gross tonnage information, including the
measurement system(s) used on the application;
(B) For a Fleet Certificate, instead of listing each individual
barge, mark the box with the following statement: ``This is an
Application for a Fleet Certificate. The largest unmanned, non-self-
propelled, non-tank barge to be covered by this Application is [INSERT
APPLICABLE GROSS TONS] GT ITC and [INSERT GROSS TONNAGE] GRT''; and
(C) For a Master Certificate, instead of listing each individual
vessel, mark the box with the following statement: ``This is an
Application for a Master Certificate. The largest tank vessel to be
covered by this Application is [INSERT APPLICABLE GROSS TONS] GT ITC
and [INSERT APPLICABLE GROSS TONS] GRT, as applicable. The largest
vessel other than a tank vessel to be covered by this Application is
[INSERT APPLICABLE GROSS TONS] GT ITC and [INSERT APPLICABLE GROSS
TONS] GRT, as applicable.''
(ii) The evidence of financial responsibility using one of the
guaranty methods provided in Sec. 138.110;
(A) For a Fleet Certificate, the evidence of financial
responsibility must be in the total applicable amount, determined as
provided in Sec. 138.100, for the largest unmanned, non-self-
propelled, non-tank barge to be covered.
(B) For a Master Certificate, the evidence of financial
responsibility must be in the total applicable amount determined as
provided in Sec. 138.100 for the largest tank vessel and largest non-
tank vessel to be covered by the Master Certificate.
(iii) The agent for service of process designations required by
Sec. 138.130; and
(iv) All other supporting documentation required by this subpart.
(A) At the time of Application for a Master Certificate, the COFR
Operator must submit a report to the Director, indicating: the name;
previous name, if applicable; type; gross tonnage and measurement
system(s) used, for each vessel covered by the Master Certificate,
indicating which vessels, if any, are tank vessels. If a vessel has
both a GT ITC and GRT tonnage, specify both gross tonnages.
(B) Six months after receiving a Master Certificate, and every 6
months thereafter, each COFR Operator must submit to the Director, an
updated report, separately listing the vessels no longer covered by
that Master Certificate. If a vessel has both a GT ITC and GRT, both
gross tonnages must be specified. If a vessel has been transferred to
another responsible party and the COFR Operator to whom the Master
Certificate was issued ceases to be the vessel's operator, the COFR
Operator must report the date and place of the transfer, and the name
and contact information of the responsible party to whom the vessel was
transferred. If the vessels covered by the Master Certificate have not
changed from the previous report, the COFR Operator may submit an
updated report that indicates no change from previous report.
(2) Pay, or cause to be paid, all fees required by Sec. 138.120.
(b) Application deadline. The Director must receive the
Application, evidence of financial responsibility, and other required
supporting documentation, at least 21 days prior to the date the
Certificate is required. The COFR Operator may seek an exception to the
21-day submission deadline only as provided in Sec. 138.60(e)(3).
(c) Where to obtain Application forms. COFR Operators may create an
Application using the online eCOFR web process (located at <a href="https://npfc.uscg.mil/cofr/default.aspx">https://npfc.uscg.mil/cofr/default.aspx</a>) or, if not using eCOFR, may obtain an
``Application for Vessel Certificate of Financial Responsibility (Water
Pollution)'' at the same website.
(d) Requirement to verify, or sign and date, the Application. (1)
The COFR Operator must complete and either verify the Application in
eCOFR as provided in Sec. 138.60(c)(1)(i) or, if not using eCOFR, sign
and date the hard-copy signature page of the Application and submit the
signed Application to the Director, by one of the methods specified in
Sec. 138.60(c)(1)(ii) through (iv).
(2) The Application must include the title of the person signing
it.
(3) If the person signing the Application is acting under a Power
of Attorney, they must include a copy of the Power of Attorney with the
Application.
(e) Requirement to update Applications. The COFR Operator must
report any changes to the Application to the Director in writing, no
later than 5 business days after discovery of the change. The Director
may require that the COFR Operator submit a revised Application and
provide additional evidence of financial responsibility, and pay any
additional fees required by Sec. 138.120.
(f) Amending Fleet and Master Certificates. Before operating a
barge or vessel that exceeds the maximum gross tonnage indicated on the
COFR, the COFR Operator must:
(1) Submit a new or amended Application, or a written request to
supplement the Application, to reflect the new maximum gross tonnages
on the COFR;
(2) Unless the COFR Operator qualifies as a self-insurer at the
higher total applicable amount, submit, or cause to be submitted,
evidence of financial responsibility using one of the guaranty methods
provided in Sec. 138.110 to the Director, demonstrating increased
coverage based on the new maximum gross tonnage; and
(3) Pay a new certification fee, as required by Sec. 138.120.
Sec. 138.90 Renewing COFRs.
(a) The COFR Operator must submit a request for COFR renewal to the
NPFC at least 21 days, but no earlier than 90 days, before the
expiration date of the current COFR.
(b) The COFR Operator may seek an exception to the 21-day request
for COFR renewal submission deadline in paragraph (a) of this section
only as provided in Sec. 138.60(e)(3).
(c) The COFR Operator must identify in the request for COFR renewal
all changes to the information contained in the initial Application,
including the gross ton measurement system(s) used (if not previously
provided), the evidence of financial responsibility, and all other
supporting documentation previously submitted to the Director, as
provided in Sec. 138.150.
Sec. 138.100 How to calculate a total applicable amount.
The total applicable amount is the sum of the OPA 90 applicable
amount determined under paragraph (a) of this section plus the CERCLA
applicable amount determined under paragraph (b) of this section.
[[Page 68144]]
(a) OPA 90 applicable amount. The applicable amount under OPA 90 is
equal to the applicable limit of liability determined as provided in
subpart B of this part.
(b) CERCLA applicable amount. The applicable amount under CERCLA is
determined as follows:
(1) For a vessel over 300 gross tons carrying a hazardous substance
as cargo, and for any vessel covered under Sec. 138.110(c)(3) or
(d)(2)(ii) (calculation of CERCLA applicable amounts for financial
guarantors and self-insurers), the greater of $5,000,000 or $300 per
gross ton.
(2) For any other vessel over 300 gross tons, the greater of
$500,000 or $300 per gross ton.
(c) Amended applicable amounts. If an applicable amount determined
under paragraph (a) or (b) of this section is amended by statute or
regulation, the COFR Operator must establish and maintain evidence of
financial responsibility in an amount equal to or greater than the
amended total applicable amount, as provided in Sec. 138.240(a).
(d) OPA 90 and CERCLA applicable amounts and limits of liability.
The responsible parties are strictly, jointly and severally liable, for
the costs and damages resulting from an incident or a release, but
together they need only establish and maintain an amount of financial
responsibility equal to the single limit of liability per incident or
release. Only that portion of the evidence of financial responsibility
under this subpart with respect to--
(1) OPA 90 is required to be made available by a guarantor for the
costs and damages related to an incident where there is not also a
release; and
(2) CERCLA is required to be made available by a guarantor for the
costs and damages related to a release where there is not also an
incident. A guarantor (or a self-insurer for whom the exceptions to a
limitations of liability are not applicable), therefore, is not
required to apply the entire amount of financial responsibility to an
incident involving oil alone or a release involving a hazardous
substance alone.
Sec. 138.110 How to establish and maintain evidence of financial
responsibility.
(a) General requirement; guaranty effective date and termination
date. The COFR Operator of each vessel must submit, or cause to be
submitted, to the Director, the evidence of financial responsibility
required by Sec. 138.40(a) using one of the methods specified in this
section.
(1) If submitted on behalf of the COFR Operator, the guarantor must
provide evidence of financial responsibility to the Director.
(2) The effective and termination dates are as follows:
Table 1 to Sec. 138.110(a)(2)--Effective and Termination Dates
------------------------------------------------------------------------
Type of certificate Effective date Termination date
------------------------------------------------------------------------
Individual................... Guaranty form 30 days after the
Fleet........................ submission date. date the Director
Guaranty form and the COFR
submission date or Operator receive
date COFR Operator written notice
becomes a from the guarantor
Responsible Party that the guarantor
for the vessel. intends to cancel
the guaranty for
that vessel.
Master....................... Guaranty form
submission date or
date COFR Operator
becomes a
Responsible Party
for the vessel.
------------------------------------------------------------------------
(3) Termination provisions:
(i) The guarantor must specify the reason for terminating the
guaranty in the notice required by this paragraph, if known.
(ii) Termination of the guaranty as to any covered vessel will not
affect the liability of the guarantor in connection with an incident or
release commencing or occurring prior to the effective date of the
guaranty termination.
(4) If, at any time, the information contained in the evidence of
financial responsibility submitted under this section changes, or there
is a material change in a guarantor or self-insurer's financial
position, the guarantor or COFR Operator or self-insurer (as
applicable), must report the change to the Director, as provided in
Sec. 138.150.
(b) Insurance guaranty method. The COFR Operator may establish and
maintain evidence of financial responsibility using the insurance
guaranty method by submitting an Insurance Guaranty Form to the
Director.
(1) Each form must be executed by no more than four COFR insurance
guarantors accepted by the Director. A lead underwriter is considered
one of the COFR insurance guarantors.
(2) The process for establishing and maintaining the acceptability
of a COFR insurance guarantor is as follows:
(i) The COFR insurance guarantor must request an initial
determination by the Director of the COFR insurance guarantor's
acceptability to serve as a COFR insurance guarantor under this
subpart, at least 90 days before the date a COFR is required, by
submitting information describing the COFR insurance guarantor's
structure, business practices, history, and financial strength, and
such other information as may be requested by the Director.
(ii) The Director reviews the continued acceptability of COFR
insurance guarantors annually. Each COFR insurance guarantor must
submit updates to the initial request submitted under paragraph
(b)(2)(i) of this section, annually, within 90 days after the close of
the COFR insurance guarantor's fiscal year, describing any material
changes to the COFR insurance guarantor's legal status, structure,
business practices, history, and financial strength, since the previous
year's submission, and providing such other information as may be
requested by the Director.
(c) Financial guaranty method. The COFR Operator may establish and
maintain evidence of financial responsibility using the financial
guaranty method by submitting a Financial Guaranty Form to the
Director.
(1) Each form must be executed by no more than four financial
guarantors accepted by the Director, at least one of which must be a
parent or affiliate of the COFR Operator. (See paragraph (g) of this
section for additional requirements if more than one financial
guarantor signs the form.)
(2) The process for establishing and maintaining the acceptability
of a financial guarantor is as follows:
(i) The financial guarantor must comply with the self-insurance
provisions in paragraph (d) of this section, and the periodic reporting
requirements in paragraphs (e)(1) through (4) of this section.
(ii) The financial guarantor must also demonstrate that it
maintains net worth and working capital, each in amounts equal to or
greater than--
(A) The aggregate total applicable amounts, calculated for each
COFR Operator vessel for which the financial guaranty is being
provided, based on
[[Page 68145]]
each such COFR Operator's vessel with the greatest total applicable
amount, plus--
(B) The total applicable amount required to be demonstrated by a
self-insurer under this subpart if the financial guarantor is also
acting as a self-insurer.
(3) In the case of a vessel greater than 300 gross tons, calculate
the CERCLA applicable amount under Sec. 138.100(b)(1) based on a
vessel carrying hazardous substances as cargo.
(d) Self-insurance method. The COFR Operator may establish and
maintain evidence of financial responsibility using the self-insurance
method as follows:
(1) Submit to the Director the financial statements specified in
paragraphs (e)(1) through (4) of this section for the fiscal year
preceding the date the COFR Operator signs the Application or request
for COFR renewal.
(2) Demonstrate that the COFR Operator maintains, in the United
States, working capital and net worth, each in amounts equal to or
greater than the total applicable amount, calculated as follows:
(i) If the self-insurer has multiple vessels, calculate the total
applicable amount based on the vessel with the greatest total
applicable amount.
(ii) In the case of a vessel greater than 300 gross tons, calculate
the CERCLA applicable amount under Sec. 138.100(b)(1) based on a
vessel carrying hazardous substances as cargo.
(e) Reporting requirements for self-insurers and financial
guarantors. (1) Each self-insurer and financial guarantor must submit
the following reports to the Director with the Application and annually
thereafter, within the deadlines specified in paragraph (e)(4) of this
section:
(i) Submit the self-insurer or financial guarantor's annual,
current, and audited non-consolidated financial statements prepared in
accordance with Generally Accepted Accounting Principles, and audited
by an independent Certified Public Accountant in accordance with
Generally Accepted Auditing Standards.
(ii) Accompany the financial statements with a declaration from the
self-insurer or financial guarantor's chief financial officer,
treasurer, or equivalent official, certifying the amount of the self-
insurer or financial guarantor's current assets, and the amount of the
self-insurer or financial guarantor's total assets included in the
accompanying balance sheet, which are located in the United States.
(iii) If the financial statements cannot be submitted in non-
consolidated form, submit a consolidated statement accompanied by an
additional declaration prepared by the same Certified Public
Accountant--
(A) Verifying the amount by which the total assets located in the
United States exceed the self-insurer or financial guarantor's total
(worldwide) liabilities, and the self-insurer or financial guarantor's
current assets located in the United States exceed the self-insurer or
financial guarantor's total (worldwide) current liabilities;
(B) Specifically naming the self-insurer or financial guarantor;
(C) Confirming that the amounts so verified relate only to the
self-insurer or financial guarantor, apart from any parent or other
affiliated entity; and
(D) Identifying the consolidated financial statement to which it
applies.
(2) When the self-insurer or financial guarantor's demonstrated net
worth is not at least ten times the cumulative total applicable
amounts, their chief financial officer, treasurer, or equivalent
official must submit to the Director with the Application and semi-
annually thereafter, within the deadline specified in paragraph (e)(4)
of this section, an affidavit stating that neither their working
capital nor net worth fell during the first 6 months of the self-
insurer or financial guarantor's current fiscal year, below the
cumulative total applicable amounts.
(3) All self-insurers and financial guarantors must--
(i) Submit, upon the Director's request, additional financial
information within the time specified; and
(ii) Notify the Director in writing within 5 days following the
date the self-insurer or financial guarantor knows, or has reason to
know, that its working capital or net worth has fallen below the total
applicable amounts.
(4) All required annual financial statements and declarations must
be submitted to the Director within 90 days after the close of the
self-insurer or financial guarantor's fiscal year. All required semi-
annual financial statements and declarations must be submitted to the
Director within 30 days after the close of the applicable 6-month
period. The Director will grant an extension of the time limits for
submissions under this paragraph only as provided in Sec. 138.60(e).
(5) A failure by a self-insurer or financial guarantor to timely
submit to the Director any statement, data, notification, or other
submission required may result in the Director denying or revoking the
COFR, and may prompt enforcement action as provided under Sec.
138.170.
(6) The Director may waive the working capital requirement for any
self-insurer or financial guarantor that--
(i) Is a regulated public utility, a municipal or higher-level
governmental entity, or an entity operating solely as a charitable,
non-profit organization qualifying under the Internal Revenue Code (26
U.S.C. 501(c)), provided that the self-insurer or financial guarantor
demonstrates in writing that the waiver would benefit a local public
interest; or
(ii) Demonstrates in writing that working capital is not a
significant factor in the self-insurer or financial guarantor's
financial condition, in which case the self-insurer or financial
guarantor's net worth in relation to the required cumulative total
applicable amounts, and a history of stable operations, are the major
elements considered by the Director.
(f) Other guaranty methods for establishing evidence of financial
responsibility. (1) The COFR Operator may request that the Director
accept a guaranty method for establishing evidence of financial
responsibility that is different from one of the methods described in
paragraphs (b) through (e) of this section as follows:
(i) The COFR Operator must submit the request to the Director in
writing, at least 90 days prior to the date the COFR is required.
(ii) The request must describe in detail: The method proposed; the
reasons why the COFR Operator does not wish to (or is unable to) use
one of the methods described in paragraphs (b) through (e) of this
section; and how the proposed guaranty method assures that the vessel's
responsible parties have the financial ability to meet their potential
liabilities under OPA 90 and CERCLA in the event of an incident or a
release.
(iii) Each COFR Operator making a request under this paragraph must
provide the Director a proposed guaranty form that includes all the
elements described in paragraphs (g) and (h) of this section.
(2) The Director will not accept a self-insurance method other than
the one described in paragraph (d) of this section. The Director also
will not accept a guaranty method under this paragraph that merely
deletes or alters a requirement or provision of one of the guaranty
methods described in paragraphs (b) through (e) of this section (for
example, one that alters the termination clause of the Insurance
Guaranty).
(3) A Director's decision to accept an alternative guaranty method
of establishing evidence of financial responsibility under this
paragraph is final agency action.
[[Page 68146]]
(g) Additional rules regarding multiple guarantors. If more than
one guarantor executes the relevant guaranty form, the following rules
apply:
(1) If a guarantor's percentage of vertical participation is
specified on the relevant guaranty form, the guarantor is subject to
direct action and is liable for the payment of costs and damages under
OPA 90 or CERCLA, as applicable, only in accordance with the percentage
of vertical participation so specified for that guarantor.
(2) Participation in the form of layering (tiers, one in excess of
another) is not permitted. Only vertical participation on a percentage
basis and participation with no specified percentage allocation is
acceptable.
(3) If no percentage of vertical participation is specified for a
guarantor on the relevant guaranty form, the guarantor's liability is
joint and several for the total of the unspecified portion.
(4) The participating guarantors must designate a lead guarantor
having authority to bind all of the participating guarantors for
actions required of guarantors under OPA 90 or CERCLA and this subpart,
including but not limited to reporting changes in the evidence of
financial responsibility as provided in Sec. 138.150(d), receipt of
source designations, advertisement of source designations and the
responsible party's claims procedures, and receipt and settlement of
claims.
(h) Direct action. (1) Each guarantor providing evidence of
financial responsibility must submit to the Director a written
acknowledgment by the guarantor that a claimant (including a claimant
by right of subrogation) may assert any claim for costs or damages
arising under OPA 90, CERCLA, or both, directly against the guarantor,
regardless of whether the claim is asserted in an action in court or
other proceeding. The guarantor must also acknowledge that, in the
event a claim is asserted directly against the guarantor under OPA 90,
CERCLA, or both, the guarantor may invoke only the following rights and
defenses--
(i) The incident, release, or both, were caused by the willful
misconduct of a responsible party for whom the guaranty was provided;
(ii) All rights and defenses, which would be available to the
responsible party under OPA 90, CERCLA, or both, as applicable;
(iii) A defense that the amount of the claim, or all claims
asserted with respect to the same incident or release, whether asserted
in court or in any other proceeding, exceeds the amount of the
guaranty, except when the guaranty is based on the gross tonnage of the
vessel (instead of the statutory minimums) and the guarantor knew or
should have known that the applicable tonnage certificate was incorrect
(see Sec. 138.50(f)); and
(iv) The claim is not one made under OPA 90, CERCLA, or both.
(2) Except when the guaranty is based on the gross tonnage of the
vessel (instead of the statutory minimums) and the guarantor knew or
should have known that the evidence of financial responsibility or
applicable tonnage certificate is incorrect (see Sec. 138.50(f)), a
guarantor who provides evidence of financial responsibility under this
subpart will be liable, with respect to any one incident or release, or
both, as applicable, only for the amount of costs and damages specified
in the evidence of financial responsibility.
(3) A guarantor will not be considered to have consented to direct
action under any law other than OPA 90 or CERCLA, or to unlimited
liability under any law or in any venue, solely because the guarantor
has provided evidence of financial responsibility under this subpart.
(4) In the event of any finding that the liability of a guarantor
under OPA 90 or CERCLA exceeds the amount of the guaranty provided
under this subpart, that guaranty is considered null and void with
respect to that excess.
(i) Process upon disapproval of guarantor. If the Director intends
to disapprove or revoke the approval of a guarantor (for example, due
to the guarantor's change in financial position), the Director will
notify the COFR Operator of the need to establish new evidence of
financial responsibility within a specified period.
(1) If the COFR Operator establishes, or causes to be established,
new acceptable evidence of financial responsibility within the period
specified by the Director in the notice, the Application if otherwise
complete will be approved or the COFR will remain in effect, and the
COFR Operator will not have to pay a new Application fee or
certification fee.
(2) If the COFR Operator fails to establish, or cause to be
established, new acceptable evidence of financial responsibility within
the period specified by the Director in the notice, the Director may
deny or revoke the COFR and, if revoked, the COFR Operator will have to
apply for a new COFR and pay a new certification fee. The COFR
Operator's failure to establish, or cause to be established, new
acceptable evidence of financial responsibility within the period
specified by the Director may also result in enforcement as provided
under Sec. 138.170.
Sec. 138.120 Fees.
(a) Fee payment methods. Each COFR Operator applying for a COFR, or
requesting a COFR renewal, must pay the fees required by paragraphs (b)
and (c) of this section as follows:
(1) All fees required by this section must be paid in United States
dollars.
(2) For COFR Operators using eCOFR as provided under Sec.
138.60(c)(1)(i), credit card payment is required.
(3) For COFR Operators submitting Applications and requests for
COFR renewal under Sec. 138.60(c)(1)(ii) through (iv) (email, fax, and
mail submissions), the fees must be paid by a check, cashier's check,
draft, or postal money order, made payable to the ``U.S. Coast Guard''.
Cash payments will not be accepted.
(i) For Applications and requests for COFR renewal submitted under
Sec. 138.60(c)(1)(ii) and (iii) (email and fax submissions,
respectively), all fee payments must be received by the Director no
later than 21 days following submission of the Application or request
for COFR renewal.
(ii) For Applications and requests for COFR renewal submitted under
Sec. 138.60(c)(1)(iv) (mail submissions), all fee payments must be
enclosed with the Application or request for COFR renewal.
(4) Any failure to timely pay the fees required by this section may
result in COFR denial or revocation, debt collection (see 6 CFR part
11, 44 CFR part 11, and 31 CFR parts 285, and 900 through 904), and
such other enforcement under Sec. 138.170 as may be appropriate.
(b) Application fee. (1) Except as provided in paragraph (b)(2) of
this section, the COFR Operator must pay a non-refundable Application
fee of $200 for each Application submitted under this subpart (for each
Application for one or more Individual Certificates, for a Fleet
Certificate, or for a Master Certificate).
(2) An Application fee is not required when the COFR Operator
submits--
(i) A request for an additional Individual Certificate under an
existing Application;
(ii) A request to amend an Application;
(iii) A request for Certificate renewal; or
(iv) A request to reinstate a Certificate, if submitted within 90
days following the Certificate's revocation.
(c) Certification fees. In addition to the Application fees
required by paragraph (b) of this section, each COFR
[[Page 68147]]
Operator who submits an Application or request for COFR renewal must
pay the following certification fees:
(1) $100 for each vessel listed in, or added to, an Application for
one or more Individual Certificates;
(2) $100 for each Application for a Fleet Certificate or Master
Certificate; and
(3) $100 for each request for renewal of an Individual Certificate,
a Fleet Certificate or a Master Certificate.
(d) Fee refunds. (1) A certification fee will be refunded, upon
receipt by the Director of a written request, if the Application or
request for COFR renewal is denied by the Director, or if the
Application is withdrawn by the COFR Operator before the Director
issues the COFR.
(2) Overpayments of Application and certification fees will be
refunded to the COFR Operator.
Sec. 138.130 Agents for Service of process.
(a) Designation of U.S. agents for service of process. Each COFR
Operator and guarantor must designate on the forms submitted a person
located in the United States as its U.S. agent for service of process
and (in the event of an incident, a release, or both) for receipt of
notices of source designation, claims presented under OPA 90, CERCLA,
or both, and lawsuits brought under OPA 90, CERCLA, or both.
(b) U.S. agent for service of process acknowledgment. Each U.S.
agent for service of process designated under paragraph (a) must
acknowledge the agency designation in writing unless the agent has
already submitted a written master (that is, blanket) agency
acknowledgment to the Director showing that the agent has agreed in
advance to act as the U.S. agent for service of process for the COFR
Operator or guarantor in question.
(c) How to change the U.S. agent for service of process. A COFR
Operator or guarantor may change a designated U.S. agent for service of
process, at any time and for any reason, by submitting a new U.S. agent
for service of process designation in accordance with the procedure in
paragraph (a), and by causing the new U.S. agent for service of process
to submit the agency acknowledgment required by paragraph (b) of this
section.
(d) Replacement of unavailable U.S. agent for service of process.
In the event a designated U.S. agent for service of process becomes
unavailable at any time, for any reason, the COFR Operator or guarantor
must designate a new U.S. agent for service of process in accordance
with the procedures in paragraph (a), within 5 days of the COFR
Operator or guarantor becoming aware of such unavailability. In
addition, the new U.S. agent for service of process must submit to the
Director the agency acknowledgment required by paragraph (b) of this
section.
(e) Service on the Director. If a designated U.S. agent for service
of process cannot be served, then service of process on the Director,
as provided in this paragraph, will constitute valid service of process
on the COFR Operator or guarantor. Service of process on the Director
will not be effective unless the server--
(1) Has sent a copy of each document served on the Director to the
COFR Operator or guarantor, as applicable, by registered mail, at the
COFR Operator or guarantor's last known address on file with the
Director;
(2) Indicates, at the time process is served upon the Director,
that the purpose of the mailing is to effect service of process on the
COFR Operator or guarantor; and
(3) Provides evidence acceptable to the Director at the time
process is served upon the Director, that service was attempted on the
designated U.S. agent for service of process but failed, stating the
reasons why service on the U.S. agent for service of process was not
possible, and that the document was sent to the COFR Operator or
guarantor, as required by paragraph (e)(1) of this section.
Sec. 138.140 Application withdrawals, COFR denials and revocations.
(a) Application withdrawal. A COFR Operator, or anyone authorized
to act on their behalf, may withdraw an Application at any time prior
to issuance of the COFR.
(b) Application denials and COFR revocations. The Director may deny
an Application or revoke a COFR, and the United States may initiate
enforcement under Sec. 138.170, for any failure to comply with the
requirements of this subpart, including--
(1) If the COFR Operator, or other person acting on the COFR
Operator's behalf, makes a false statement in, or in connection with,
any submission required by this subpart;
(2) If the COFR Operator, or other person acting on the COFR
Operator's behalf, fails to establish or maintain acceptable evidence
of financial responsibility, as required by this subpart;
(3) If the COFR Operator fails to pay the Application and
certification fees required by Sec. 138.120;
(4) If the COFR Operator or guarantor fails to designate and
maintain a U.S. agent for service of process as required by Sec.
138.130;
(5) If the COFR Operator, or other person acting on the COFR
Operator's behalf, fails to comply with, or respond to, lawful
inquiries, regulations, or orders of the U.S. Coast Guard pertaining to
the activities subject to this subpart;
(6) If the COFR Operator, or other person acting on the COFR
Operator's behalf, fails to timely report information required to be
reported to the Director under this subpart, including failing to
timely submit to the Director statements, data, financial information,
notifications, affidavits, or other submissions required by this
subpart; or
(7) If the Director obtains information indicating that the
Application should be denied or that a new COFR is required (for
example, a permanent vessel transfer, new COFR Operator, vessel
renaming, guaranty termination, disapproval of a guarantor).
(c) Procedure for reinstating COFRs following termination of
guaranties. If a COFR is revoked by the Director under paragraph (b)(2)
of this section based on the expiration of 30 days following the date
the Director receives a guarantor's notice of termination as provided
under Sec. Sec. 138.110(a)(3) and 138.150(d), the Director may
reinstate the COFR if the guarantor promptly notifies the Director
following the revocation that the guarantor rescinded the termination
and that there was no gap in guarantor coverage.
(d) Notice to COFR Operator of intent to deny an Application or
revoke a COFR. If the Director obtains information indicating that an
Application should be denied or that a COFR should be revoked for
reasons that the COFR Operator may not be aware of, the Director will
notify the COFR Operator, in writing, stating the reason for the
intended action.
(1) A notice from the Director that an Application is incomplete
will be considered a denial unless the Application is completed by the
COFR Operator within the period specified in the notice. A COFR subject
to revocation remains valid until the COFR is revoked as provided in
Sec. 138.140(d)(2) and (3).
(2) If the Director issues a notice of intent to deny an
Application or revoke a COFR due to a violation under paragraph (b) of
this section, the COFR Operator may demonstrate compliance to the
Director in writing by no later than the date specified by the Director
in the notice. If the COFR Operator demonstrates compliance by that
date, the Application will remain under consideration, and any current
COFR will remain in effect, unless and until
[[Page 68148]]
the Director issues a written decision denying the Application or
revoking the COFR, as applicable. Otherwise, the Application denial or
COFR revocation is effective as of the date specified by the notice.
(3) The denial of an Application or revocation of a COFR does not
terminate the guaranty.
(e) Request for reconsideration. (1) A COFR Operator may ask the
Director to reconsider a denial of the COFR Operator's Application or
the revocation of a COFR as follows:
(i) The COFR Operator must submit the request for reconsideration,
in writing, to the Director no later than 21 days after the date of the
denial or revocation.
(ii) The submission must state the COFR Operator's reasons for
requesting reconsideration and include all supporting documentation.
(2) A decision by the Director on reconsideration of an Application
denial or a COFR revocation is final agency action. If the Director
does not issue a written decision on the request for reconsideration
within 30 days after its submission, the request for reconsideration
will be deemed to have been denied, and the Application denial or COFR
revocation will be deemed to have been affirmed as a matter of final
agency action. Unless the Director issues a decision reversing the
revocation, the COFR revocation remains in effect.
(f) Duty to remedy violations. If the COFR for a vessel expires or
is revoked while the vessel is located in the navigable waters, at any
port or other place subject to the jurisdiction of the United States,
or in the Exclusive Economic Zone, the COFR Operator and the vessel's
other responsible parties will be deemed in violation of this subpart.
In such event, the COFR Operator or, if unavailable or no longer
operating the vessel, the vessel's current responsible parties, must
notify the Director within 24 hours, by email or other electronic
means. The notice must include the information required by Sec.
138.150(b) and must establish new evidence of financial responsibility,
designate a new COFR Operator if applicable, and cure any other
violation of this subpart.
Sec. 138.150 Reporting requirements.
(a) Report changes of submitted information. When there is a change
in any of the facts contained in an Application, a request for COFR
renewal, evidence of financial responsibility, or other submission made
under this subpart, the change must be reported, in writing, to the
Director. The reports required by this section may be submitted with,
but are in addition to, other submissions required by this subpart (for
example, Applications, requests for COFR renewal, semi-annual and
annual financial reports, Master Certificate reports).
(b) A 21-day prior reporting requirement of permanent vessel
transfers and other changes requiring issuance of a new COFR. Current
COFR Operators of vessels, and owners or operators of vessels not
currently in U.S. navigable waters or the U.S. Exclusive Economic Zone,
must report to the Director, and (if applicable) to the guarantor, the
following information, no later than 21 business days before the new
COFR is required:
(1) The number of the current COFR;
(2) The name of the covered vessel;
(3) The type of change planned;
(4) The date the change will take place;
(5) The reason for the change;
(6) For a vessel that will be located in U.S. navigable waters or
U.S. Exclusive Economic Zone on the date the change is scheduled to
take place, where the vessel will be located on that date (for example,
name and location of port);
(7) For a vessel name change, the vessel's new legal name;
(8) For the planned transfer of a vessel to a new responsible
party, and even if the transferee's intent is to scrap or otherwise
dispose of the vessel, the name and contact information of the
responsible party to whom the vessel is being transferred;
(9) For a change of COFR Operator, the name and contact information
of the person who will replace the COFR Operator; and
(10) Any other changes in the information previously submitted to
ensure the information on record at the NPFC is current.
(c) Three-day prior reporting of changes not requiring issuance of
a new COFR. In addition to the prior reporting required by paragraph
(b) of this section, the COFR Operator must report any change to
information contained in a submission to the Director that does not
require issuance of a new COFR, by no later than 3 business days before
implementing the change, including, but not limited to: Changes to the
U.S. agent for service of process (other than termination), a change of
a non-operator vessel owner, new contact information, and changes in
vessel particulars (for example, flag, measurement, type, and scheduled
vessel scrapping).
(d) Reporting by guarantors. Each guarantor (or, if there are
multiple guarantors, each lead guarantor) must give the Director 30
days notice before terminating a guaranty as provided in Sec.
138.110(a)(3), explaining the reason for the intended termination, once
known, or should have known, in the ordinary course of business.
(e) Enforcement; deadline exceptions. A failure to timely submit
the reports required by this section may result in enforcement actions
as provided in Sec. 138.170. Exceptions to the reporting deadlines
will only be granted as provided in Sec. 138.60(e).
Sec. 138.160 Non-owning COFR Operator's responsibility for
identification.
(a) Each COFR Operator of a vessel with a COFR, other than an
unmanned, non-self-propelled barge, who is not also an owner of the
vessel must ensure that the original or a legible copy of the vessel's
demise charter-party (or other written document on the owner's
letterhead, signed by the vessel owner, which specifically identifies
the COFR Operator named on the COFR) is maintained on board the vessel.
(b) The demise charter-party or other document required by
paragraph (a) of this section must be presented, upon request, for
examination and copying, to the Director or other United States
Government official.
Sec. 138.170 Enforcement.
(a) Applicability. Any person who fails to comply with the
requirements of this subpart, including the reporting requirements in
Sec. 138.150, may be subject to enforcement as provided in this
section, including if--
(1) The COFR Operator fails to maintain acceptable evidence of
financial responsibility as required;
(2) The name of a covered vessel is changed without reporting the
change to the Director as required in Sec. 138.150;
(3) The COFR Operator ceases, for any reason, to be an operator of
a covered vessel, including when a vessel is scrapped or transferred to
a new owner or operator, and a new Application and report have not been
submitted to the Director as required by Sec. Sec. 138.80 and 138.150;
or
(4) The COFR Operator fails to maintain a U.S. agent for service of
process.
(b) Non-compliance. During a period of non-compliance with this
subpart, all use by the vessel of the navigable waters of the United
States, of any port or other place subject to the jurisdiction of the
United States, or of the Exclusive Economic Zone to transship or
lighter oil destined for a place subject to the jurisdiction of the
United States, is forbidden.
(c) Withholding and revoking vessel clearance. The Secretary of the
[[Page 68149]]
Department of Homeland Security will withhold or revoke the clearance
required by 46 U.S.C. 60105 of any vessel subject to this subpart that
does not have a COFR or for which the evidence of financial
responsibility required has not been established and maintained.
(d) Denying vessel entry, and detention. The U.S. Coast Guard may
deny entry to any port or other place in the United States or the
navigable waters, and may detain at any port or other place in the
United States in which it is located, any vessel subject to this
subpart, which does not have a COFR or for which the evidence of
financial responsibility required by this subpart has not been
established and maintained.
(e) Seizure and forfeiture. In accordance with OPA 90, any vessel
subject to this subpart which is found in the navigable waters without
a COFR, or for which the necessary evidence of financial responsibility
has not been established and maintained as required, is subject to
seizure by, and forfeiture to, the United States.
(f) Administrative and judicial penalties and other relief. (1) Any
person who fails to comply with the requirements of this subpart or the
evidence of financial responsibility requirements of OPA 90, CERCLA, or
both, including a failure to comply with the reporting requirements in
Sec. 138.150, is subject to civil administrative and judicial
penalties under OPA 90 and CERCLA, as applicable. In addition, under
OPA 90, the Attorney General may secure such relief as may be necessary
to compel compliance with OPA 90 and this subpart, including
termination of operations.
(2) Under 18 U.S.C. 1001, any person making a false statement in,
or in connection with, a submission under OPA 90 or CERCLA or this
subpart is subject to prosecution.
(3) Any person who fails to timely pay the fees required by Sec.
138.120 or any other amounts due under OPA 90 or CERCLA or this subpart
may also be subject to Federal debt collection under 6 CFR part 11, 44
CFR part 11 and 31 CFR parts 285, and 900 through 904.
PART 153--CONTROL OF POLLUTION BY OIL AND HAZARDOUS SUBSTANCES,
DISCHARGE REMOVAL
0
5. The authority citation for part 153 continues to read as follows:
Authority: 14 U.S.C. 503; 33 U.S.C. 1321, 1903, 1908; 42 U.S.C.
9615; 46 U.S.C. 6101; E.O. 12580, 3 CFR, 1987 Comp., p. 193; E.O.
12777, 3 CFR, 1991 Comp., p. 351; Department of Homeland Security
Delegation No. 0170.1.
Subpart D--[Removed]
0
6. Subpart D, consisting of Sec. Sec. 153.401 through 153.417, is
removed.
Dated: 22 November 2021.
Mark J. Fedor,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Resources.
[FR Doc. 2021-26046 Filed 11-30-21; 8:45 am]
BILLING CODE 9110-04-P
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</html>Indexed from Federal Register on December 1, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.