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(3) News media requesters. The FOIA
Officer shall charge news media
requesters for document duplication
costs only, except that the first 100
pages of paper copies shall be provided
without charge.
(4) All other requesters. The FOIA
Officer shall charge requesters who do
not fall into any of the categories in
paragraphs (d)(1) through (3) of this
section fees which recover the full
reasonable direct costs incurred for
searching for and reproducing records if
that total cost exceeds $14.99, except
that the first 100 pages of duplication
and the first two hours of manual search
time shall not be charged.
(e) Charges for unsuccessful searches.
If the requester has been notified of the
estimated cost of the search time and
has been advised specifically that the
requested records may not exist or may
be withheld as exempt, fees may be
charged.
(f) Nonpayment of fees. The FOIA
Officer may assess interest charges on
an unpaid bill, accrued under previous
FOIA request(s), starting the thirty-first
(31st) day following the day on which
the bill was sent to the requester.
Interest will be at the rate prescribed in
31 U.S.C. 3717. MCC will require the
requester to pay the full amount owed
plus any applicable interest as provided
above, and to make an advance payment
of the full amount of the remaining
estimated fee before MCC will begin to
process a new request or continue
processing a then-pending request from
the requester. The administrative
response time limits prescribed in
subsection (a)(6) of the FOIA will begin
only after MCC has received fee
payments described in this section.
(g) Aggregating requests. The
requester or a group of requesters may
not submit multiple requests at the same
time, each seeking portions of a
document or documents solely in order
to avoid payment of fees. When the
FOIA Officer reasonably believes that a
requester is attempting to divide a
request into a series of requests to evade
an assessment of fees, the FOIA Officer
may aggregate such request and charge
accordingly.
(h) Advance payment of fees. Fees
may be paid upon provision of the
requested records, except that payment
will be required prior to that time if the
requester has previously failed to pay
fees or if the FOIA Officer determines
the total fee will exceed $250.00. When
payment is required in advance of the
processing of a request, the time limits
prescribed in § 1304.5 shall not be
deemed to begin until the FOIA Officer
has received payment of the assessed
fee. Where it is anticipated that the cost

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of providing the requested record will
exceed $25.00 but fall below $250.00
after the free duplication and search
time has been calculated, MCC may, in
its discretion may require either:
(1) An advance deposit of the entire
estimated charges; or
(2) Written confirmation of the
requester’s willingness to pay such
charges.
Dated: September 5, 2008.
John C. Mantini,
Chief FOIA Officer, Millennium Challenge
Corporation.
[FR Doc. E8–21335 Filed 9–16–08; 8:45 am]
BILLING CODE 9211–03–P

DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 138
[Docket No. USCG–2005–21780]
RIN 1625–AA98

Financial Responsibility for Water
Pollution (Vessels) and OPA 90 Limits
of Liability (Vessels and Deepwater
Ports)
Coast Guard, DHS.
Final rule.

AGENCY:
ACTION:

SUMMARY: The Coast Guard is amending
the regulatory requirements, under the
Oil Pollution Act of 1990 and the
Comprehensive Environmental
Response, Compensation and Liability
Act, for vessel operators (as defined in
the rule) to establish and maintain
evidence of financial responsibility. The
amendments ensure that the amounts of
financial responsibility that must be
demonstrated by vessel operators are
consistent with recent statutory
increases, and future mandated
increases, to the limits of liability under
the Oil Pollution Act of 1990. The
amendments also implement changes in
the Coast Guard’s administration of the
certificate of financial responsibility
program, and clarify the current rule.
DATES: This final rule is effective
October 17, 2008.
ADDRESSES: Comments and material
received from the public, as well as
documents mentioned in this preamble
as being available in the docket, are part
of docket USCG–2005–21780 and are
available for inspection or copying at
the Docket Management Facility (M–30),
U.S. Department of Transportation,
West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m.

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and 5 p.m., Monday through Friday,
except Federal holidays. You may also
find this docket on the Internet at
http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call
Benjamin White, National Pollution
Funds Center, Coast Guard, telephone
202–493–6863. If you have questions on
viewing the docket, call Renee V.
Wright, Program Manager, Docket
Operations, telephone 202–366–9826.
SUPPLEMENTARY INFORMATION:
I. Acronyms
CERCLA Title I of the Comprehensive
Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C.
9601–9675).
CFR Code of Federal Regulations.
COFR Certificate of Financial
Responsibility.
DPA Deepwater Port Act of 1974, as
amended (33 U.S.C. 1501 et seq.).
DRPA Delaware River Protection Act of
2006, Title VI of the Coast Guard and
Maritime Transportation Act of 2006, Public
Law 109–241, July 11, 2006, 120 Stat. 516.
FRFA Final Regulatory Flexibility
Analysis.
FR Federal Register.
Fund Oil Spill Liability Trust Fund.
IRFA Initial Regulatory Flexibility
Analysis.
LOOP Louisiana Offshore Oil Port.
MODU Mobile Offshore Drilling Unit.
NEPA National Environmental Policy Act
of 1969 (42 U.S.C. 4321–4370f).
NPRM Notice of Proposed Rulemaking.
OPA 90 The Oil Pollution Act of 1990, as
amended (33 U.S.C. 2701, et seq.).
U.S.C. United States Code.
U.S.C.C.A.N. United States Code
Congressional and Administrative News.

II. Regulatory History
On August 18, 2006, before initiating
this rulemaking, we published a notice
of policy in the Federal Register (71 FR
47737) entitled ‘‘New Oil Pollution
Limits of Liability for Vessels—
Delaware River Protection Act of 2006
Amendment to the Oil Pollution Act of
1990’’ (hereafter the ‘‘Notice of Policy’’).
On February, 5, 2008, we published a
notice of proposed rulemaking (NPRM)
in the Federal Register (73 FR 6642),
entitled ‘‘Financial Responsibility for
Water Pollution (Vessels) and OPA 90
Limits of Liability (Vessels and
Deepwater Ports)’’.
On February 13, 2008, we published
corrections to the NPRM in the Federal
Register (73 FR 8250), to clarify the
proposed effective date of the rule and
the distinction between the financial
responsibility applicable amounts of
§ 138.80(f) and the OPA 90 limits of
liability in proposed Subpart B.
We received seven letters during the
public comment period raising 13

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issues, and one additional letter after
the public comment period closed on
May 5, 2008, raising one issue. No
public meeting was requested and none
was held.
III. Background and Purpose
In general, under the Oil Pollution
Act of 1990, as amended (33 U.S.C.
2701, et seq.) (OPA 90), responsible
parties (i.e., the owners and operators,
including demise charterers) for a vessel
or a facility 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 are liable for the removal
costs and damages specified in OPA 90
that result from such incident, up to
prescribed limits of liability. (33 U.S.C.
2702(a); 33 U.S.C. 2704). Embodying the
polluter pays principle, this liability is
strict, joint and several.1 Similar
requirements apply under Section 107
of the Comprehensive Environmental
Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C.
9607) (CERCLA) to owners and

operators of vessels and facilities that
release or threaten to release hazardous
substances.
The OPA 90 limits of liability are set
out in 33 U.S.C. 2704(a). The CERCLA
limits of liability are set out in 42 U.S.C.
9607.
In addition to the limit of liability
provisions, 33 U.S.C. 2716(a) of OPA 90
and 42 U.S.C. 9608(a) of CERCLA
require that the owners and operators,
including demise charterers, of certain
vessels establish and maintain evidence
of financial responsibility (i.e., ability to
pay) sufficient to meet the maximum
amount of liability to which they could
be subjected under 33 U.S.C. 2704 and
42 U.S.C. 9607.
According to 33 U.S.C. 2716(a)(1) and
(2), the evidence of financial
responsibility requirements apply, in
relevant part for purposes of OPA 90, to
responsible parties for: Any vessel over
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;
and any vessel using the waters of the
exclusive economic zone to transship or
lighter oil destined for a place subject to

the jurisdiction of the United States.
OPA 90, at 33 U.S.C. 2716(c), also
imposes evidence of financial
responsibility requirements on offshore
facilities and deepwater ports. This
rulemaking, however, only concerns the
OPA 90 evidence of financial
responsibility requirements that must be
met by vessels under 33 U.S.C. 2716(a).
The OPA 90 limits of liability are
subject to amendment both by statute
and, under 33 U.S.C. 2704(d), by
regulation, and when the limits of
liability are amended the financial
responsibility requirements must be
adjusted by regulation. On July 11,
2006, the President signed the Delaware
River Protection Act of 2006, Title VI of
the Coast Guard and Maritime
Transportation Act of 2006, Public Law
109–241, July 11, 2006, 120 Stat. 516
(DRPA). Section 603(a) of DRPA
amended the OPA 90 limits of liability
for vessels at 33 U.S.C. 2704(a).
The following table shows the OPA 90
limits of liability in effect before DRPA,
and the new limits of liability under
OPA 90 as amended by DRPA Section
603(a), by vessel type:

CHANGES TO OPA 90 VESSEL LIMITS OF LIABILITY 2
If the vessel is a

The original limit of liability limit was the
greater of—

The amended limit of liability is the
greater of—

Tank vessel greater than 3,000 gross tons with
a single hull, with double sides only, or with a
double bottom only.
Tank vessel less than or equal to 3,000 gross
tons with a single hull, with double sides
only, or with a double bottom only.
Tank vessel greater than 3,000 gross tons with
a double hull.
Tank vessel less than or equal to 3,000 gross
tons with a double hull.
Any vessel other than a tank vessel ..................

$1,200 per gross ton or $10,000,000 ..............

$3,000 per gross ton or $22,000,000.

$1,200 per gross ton or $2,000,000 ................

$3,000 per gross ton or $6,000,000.

$1,200 per gross ton or $10,000,000 ..............

$1,900 per gross ton or $16,000,000.

$1,200 per gross ton or $2,000,000 ................

$1,900 per gross ton or $4,000,000.

$600 per gross ton or $500,000 ......................

$950 per gross ton or $800,000.

2 Sources:

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33 U.S.C. 2704(a) immediately prior to amendment by DRPA, and 33 U.S.C. 2704(a) as amended by DRPA Section 603(a). Although the original and current versions of 33 U.S.C. 2704(a) both distinguish between vessels on the basis of their gross tonnage and whether
they are tank vessels, 33 U.S.C. 2704(a) as amended by DRPA Section 603(a) now also distinguishes between single-hulled and double-hulled
tank vessels.

On August 18, 2006, before initiating
this rulemaking, we published a Notice
of Policy in the Federal Register (71 FR
47737, see, Regulatory History)
explaining:
• That the OPA 90 limits of liability
for vessels were changed by DRPA
effective July 11, 2006 for non-tank
vessels, and effective October 9, 2006
for tank vessels;
• The amounts of the new OPA 90
vessel limits of liability;

• That the OPA 90 proof of financial
responsibility (applicable amount)
requirements for vessels at 33 CFR part
138 would stay at the applicable amount
levels in effect prior to the DRPA
amendments until changed by
rulemaking; and
• That a rulemaking project would be
initiated to require vessel owners and
operators to provide evidence of
financial responsibility applicable

amounts under 33 CFR part 138 to the
amended OPA 90 limits of liability.

1 See, Oil Pollution Desk Book, Environmental
Law Institute 1991, hereinafter OPA 90 Desk Book,
p. 88, H.R. Conf. Report 101–653, at p. 102,
reprinted in 1990 U.S.C.C.A.N. 779, 780 [’’The term
‘liable’ or ‘liability’ * * * is to be construed to be

the standard of liability * * * under section 311 of
the [Federal Water Pollution Control Act, 33 U.S.C.
1321] * * *. That standard of liability has been
determined repeatedly to be strict, joint and several
liability.’’]; OPA 90 Desk Book p. 93, H.R. Conf.

Report 101–653, at 118, 1990 U.S.C.C.A.N., at 797
(Aug. 3, 1990) [‘‘[T]he primary responsibility to
compensate victims of oil pollution rests with the
person responsible for the source of the
pollution[.]’’].

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Scope of the Rule
This rulemaking was initiated, as
contemplated in the Notice of Policy, to
ensure that the owners and operators
(including demise charterers, hereafter
referred to jointly as the operators) of
any vessel required to have a certificate
of financial responsibility under 33
U.S.C. 2716, demonstrate that they are

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Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations
financially able to meet their potential
liability under OPA 90, 33 U.S.C. 2704,
under the new limits of liability as
amended by DRPA, in the event of an
incident where an OPA 90 limit of
liability applies. The rulemaking
amends 33 CFR part 138 to ensure
consistency between the OPA 90 vessel
evidence of financial responsibility
applicable amounts at § 138.80(f)(1) and
the OPA 90 vessel limits of liability as
amended by DRPA.3
This rulemaking also establishes the
framework for ensuring consistency
when regulatory changes to the OPA 90
limits of liability for vessels and
deepwater ports are promulgated in the
future under 33 U.S.C. 2704(d).
Specifically, the rulemaking divides
part 138 of Title 33 CFR into two
subparts. The vessel financial
responsibility requirements, former 33
CFR part 138, as amended by this
rulemaking now appears under 33 CFR
part 138, new subpart A. In addition, a
new subpart has been created, at 33 CFR
part 138, subpart B, to set forth the OPA
90 limits of liability for vessels and
deepwater ports, and reserving
paragraphs for other oil spill source
categories that are regulated by the
Coast Guard. Last, rather than
specifically enumerating the OPA 90
financial responsibility applicable
amounts for vessels in § 138.80(f)(1),
that section now cross-references to the
OPA 90 limits of liability for vessels as
amended by DRPA or hereafter by
regulation, as set forth in new subpart
B. This change ensures that the OPA 90
financial responsibility applicable
amounts that must be proven by vessel
operators, under 33 CFR part 138,
subpart A, will always be consistent
with the OPA 90 limits of liability set
forth in 33 CFR part 138, subpart B.
This rulemaking also eliminates the
requirement in former § 138.65 that an
original Certificate of Financial
Responsibility (Certificate or COFR), or
an authorized copy thereof, be carried
aboard covered vessels. Improved
technology now enables the Coast Guard
to view vessel COFRs electronically,
which is more cost effective than
tasking inspectors to view a paper
Certificate on board each vessel.
In addition, the rule increases the
COFR application and certification fees
found in § 138.130. The prior fee
amounts were established in 1994 in the
interim rule entitled ‘‘Financial
Responsibility for Water Pollution
(Vessels)’’ (59 FR 34210), and the
3 This rulemaking does not change the limits of
liability or applicable amount provisions for vessels
under CERCLA at 42 U.S.C. 9607(c), 42 U.S.C.
9608(a), and § 138.80(f)(2).

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amounts had not been increased since
that time. The new fee amounts
established by this rulemaking
approximate the fluctuations to the
Consumer Price Index occurring as a
result of inflation since 1994.
Finally, this rulemaking revises the
definition of ‘‘owner’’ in § 138.20 to
reflect amendments to OPA 90 by the
Coast Guard and Maritime
Transportation Act of 2004, Public Law
108–293, August 9, 2004, 118 Stat. 1045.
IV. Discussion of Comments and
Changes
We received seven letters raising 13
issues during the public comment
period for the proposed rule (73 FR
6642 and 73 FR 8250), and one
additional letter raising one issue after
the public comment period closed on
May 5, 2008. The letters we received
during the public comment period were
from a private citizen, three COFR
guarantors, a proposed liquid natural
gas (LNG) deepwater port developer, a
State environmental agency, and an
association of oil spill regulatory
agencies from Alaska, British Columbia,
Washington, Oregon, Hawaii and
California. The letter received after the
public comment period closed was from
an offshore drilling association. The
following discussion summarizes the
public comments we received and our
responses to the comments.
One commenter was concerned with
an oil spill off the coast of New Jersey
more than one year ago where the
responsible party was never identified,
and proposed that, to improve security
and prevent pollution, the U.S. have
information on every ship carrying any
cargo that enters any U.S. waters at any
time. This rulemaking only addresses
the requirements under 33 U.S.C. 2716
for vessels to provide evidence of
financial responsibility. The comment is
therefore beyond the scope of this
rulemaking, and no change has been
made in the final rule in response to this
comment. The Coast Guard, however,
agrees that maritime domain awareness
is important to our national security and
efforts to reduce pollution, and is taking
steps to improve vessel tracking
systems.
The same commenter proposed that
the Coast Guard establish a requirement
for vessels to post a five million dollar
bond to pay for any damage in the event
of an oil spill incident. This comment
is beyond the scope of this rulemaking.
OPA 90 does not authorize the Coast
Guard to impose a bonding requirement
on vessels including cargo vessels.
Therefore, no change has been made to
the final rule in response to this
comment. OPA 90 does, however,

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establish limits of liability at 33 U.S.C.
2704(a), applicable to all vessels. Those
limits are generally more than five
million dollars for tank vessels, and for
most large ocean-going vessels.
Furthermore, at 33 U.S.C. 2716 and in
these regulations, OPA 90 requires that
all vessels—including cargo vessels—
over 300 gross tons establish and
maintain evidence of financial
responsibility sufficient to meet the
maximum amount of liability to which
the responsible party could be subjected
under 33 U.S.C. 2704(a).
Two commenters recommended
adding the following proviso at the end
of the first sentence of § 138.80(d)(2)
Limitation on guarantor liability: ‘‘,
provided that the guarantor was
immediately notified as required by 33
U.S.C. 2714 and given the same
opportunity to respond to an incident or
a release or threatened release, as that
given to the responsible party.’’ This
comment is beyond the scope of this
rulemaking. This rulemaking only
addresses the requirements under 33
U.S.C. 2716 for vessels to provide
evidence of financial responsibility. The
provisions of OPA 90 concerning
designation of sources, and notification
of responsible parties and guarantors,
are set forth in 33 U.S.C. 2714(a), and
are detailed further in regulations at 33
CFR part 136, subpart D (33 CFR
136.305(a)).
Furthermore, there is no provision in
33 U.S.C. 2714(a) or elsewhere in OPA
90 that limits a guarantor’s liability for
removal costs and damages in the event
the government does not notify the
responsible party or guarantor of a
source designation. A failure to notify
only affects the responsible party’s and
guarantor’s obligations concerning
advertisement to potential claimants,
under 33 U.S.C. 2714(b) and
implementing regulations at 33 CFR part
136. The Coast Guard therefore
disagrees with the proposed change to
§ 138.80(d).
One commenter recommended
changing the reference to the Louisiana
Offshore Oil Port (LOOP) in
§ 138.220(b), to encompass any limit of
liability established under 33 U.S.C.
2704(d)(2)(A)–(C). We agree that the
wording in the proposed regulatory text
was unnecessarily narrow and have
amended § 138.220(b) accordingly.
One commenter asked that
§ 130.220(b) be expanded to describe the
nature of any studies that might be
required of deepwater port license
applicants or license holders and the
specific administrative process to be
followed under 33 U.S.C. 2704(d)(2) for
seeking adjustments to the limits of
liability for deepwater ports under 33

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U.S.C. 2704(a). This comment concerns
issues that go beyond the scope of this
rulemaking. This rulemaking identifies
the existing limits of liability for vessels
and deepwater ports, but it does not
adjust any limits of liability. Nor does
it concern the studies and other criteria
under 33 U.S.C. 2704(d) for adjusting
the limits. Instead, it primarily concerns
the evidence of financial responsibility
requirements applicable to vessels
under 33 U.S.C. 2716.
One commenter asked several
questions concerning how the Coast
Guard determines a vessel’s category for
purposes of implementation of the
COFR rule. First, the commenter wanted
to know what documents will serve as
a reference point for the Coast Guard to
determine whether a vessel has a single
or double hull, and whether the Coast
Guard would use a classification society
survey or some other official document
that is generally accepted as an accurate
record of the hull construction. The
same commenter asked what document
will be used by the Coast Guard as the
reference point for classifying a vessel
in circumstances where a vessel has
changed type (e.g., from a Very-large
Crude Carrier tanker to a dry cargo
vessel).
The Coast Guard may confirm vessel
details provided in the application for a
certificate of financial responsibility,
including any guarantee schedule, by
referring to certificates of inspection and
other normally available information
sources such as Class Society surveys,
Lloyds List, and Protection & Indemnity
Club information. We have clarified the
rule in response to these questions,
consistent with legislative intent, by
replacing the words ‘‘other than a vessel
referred to in § 138.220(a)(1),’’ in
§ 138.220(a)(2) and (4), with the term
‘‘double hull’’, and by adding at the end
of § 138.220(a) that the term ‘‘double
hull’’ has the meaning used in 33 CFR
part 157 and that the term ‘‘single hull’’
means any hull that is not a ‘‘double
hull’’. (See, 152 Cong. Rec. H1640,
H1663).
The commenter also asked how the
Coast Guard intends to enforce the
imminent phase-out of single-hull tank
vessels? Specifically, the commenter
asked, in a hypothetical instance where
a single-hull tank vessel owner
misstates in an application for a
guaranty that the vessel is double
hulled: How would the Coast Guard
determine that the vessel should not
enter the U.S. Exclusive Economic
Zone? What would the consequence be
to the vessel owner? Would there be any
consequence for the guarantor?
Enforcement of the phase-out of singlehull tankers is outside the scope of this

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rulemaking. Furthermore, the
consequences of any illegal vessel entry
would depend in part on the
circumstances of the entry and the
applicable law(s). No change is made to
the rule in response to these questions.
Two commenters noted that the
rulemaking did not increase the OPA 90
limits of liability, under 33 U.S.C.
2704(d), to reflect significant increases
in the Consumer Price Index. One of the
commenters noted that the notice of
proposed rulemaking did not increase
the limits of liability for facilities under
the Coast Guard’s jurisdiction for
inflation. The same commenter also
stated that ‘‘the proposed increases for
vessels, including tank barges, is at the
2006 DRPA level only: No [Consumer
Price Index] increases since 2006 are
reflected in the proposed rule[,]’’ and
noted that DRPA also amended the
provision 33 U.S.C. 2704(d) authorizing
increases to limits of liability based on
the Consumer Price Index.
The other commenter stated that ‘‘the
limits of liability for non-tank vessels
should be increased’’. The same
commenter stated that the ‘‘proposed
rulemaking fails to address the issue of
limits of liability for oil handling
facilities’’, and erroneously
characterized the NPRM as proposing to
change the limits of liability for vessels
‘‘based on the consumer price index’’.
These commenters misunderstand the
scope of this rulemaking. This
rulemaking does not adjust the OPA 90
limits of liability for any source
category. Nor does this rulemaking
adjust any limits of liability for
inflation. This rulemaking is primarily
intended to conform the OPA 90
financial responsibility ‘‘applicable
amounts’’ for vessels under 33 U.S.C.
2716 (at 33 CFR part 138, subpart A,
§ 138.80(f)), to the limits of liability for
vessels under OPA 90 as amended by
DRPA.
Although the rulemaking establishes a
new subpart B setting forth the OPA 90
limits of liability for vessels and
deepwater ports, and establishes the
framework for future regulatory changes
to the OPA 90 limits of liability,
including adjustments for inflation, the
primary purpose of this rulemaking is to
ensure consistency between the OPA 90
vessel financial responsibility
applicable amounts at § 138.80(f) and
the OPA 90 limits of liability now in
effect and as may hereafter be amended
by regulation. Consumer Price Index
increases to the OPA 90 limits of
liability for Coast Guard delegated
source categories, including oil
handling facilities, other facilities, tank
barges and other vessels, will be
promulgated by regulation, in

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accordance with 33 U.S.C. 2704(d), in
separate rulemakings.
To eliminate some of the confusion
concerning the scope of this rulemaking,
we have eliminated the reference to the
Consumer Price Index that appeared in
proposed § 138.200. We also have edited
the regulatory text of § 138.85 to clarify
the distinction between the effective
date of this rule and the date by which
operators must establish evidence of
financial responsibility in an amount
equal to or greater than the new
applicable amounts. Finally we have
amended subpart B for clarity and to
reserve space for future regulatory
adjustments to the limits of liability
under 33 U.S.C. 2704(d), including
adjustments to reflect significant
increases in the Consumer Price Index.
One commenter commented favorably
that the rulemaking would ‘‘eliminate
the requirement for vessel operators to
maintain their certificates of financial
responsibility (COFR) on board ships.
We support this direction towards
electronic certification. We currently
use the USCG online database for vessel
contingency plans. In addition the
addition of the online COFR database
will prove to be beneficial for crossagency partnership work.’’ No changes
have been made to the rule in response
to this comment.
One commenter, who submitted a
comment after the close of the public
comment period, asked for a
supplemental rulemaking to treat all
mobile offshore drilling units (MODUs)
as double hull tank vessels for purposes
of the financial responsibility
requirements of 33 CFR part 138,
subpart A. OPA 90 at 33 U.S.C. 2716(a)
requires that evidence of financial
responsibility be provided up to the
applicable limits of liability. OPA 90 at
33 U.S.C. 2704(b), in turn, provides that
when a MODU is used as an offshore
facility it is generally treated as a tank
vessel for purposes of OPA 90. There,
however, is no provision in OPA 90
authorizing treatment of single-hulled
MODUs when used as offshore facilities
as double-hulled tank vessels for
purposes of determining the applicable
limit of liability or the financial
responsibility requirements. The Coast
Guard therefore will not initiate a
supplemental rulemaking in response to
this comment.
V. Regulatory Analyses
We developed this rule after
considering numerous statutes and
executive orders related to rulemaking.
Below we summarize our analyses
based on 13 of these statutes or
executive orders.

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A. Regulatory Planning and Review
This rule is not a significant
regulatory action under section 3(f) of
Executive Order 12866, Regulatory
Planning and Review, and does not
require an assessment of potential costs
and benefits under section 6(a)(3) of that
Order. The Office of Management and
Budget has not reviewed it under that
Order. A final Regulatory Assessment is
available in the docket as indicated
under ADDRESSES. A summary of the
Regulatory Assessment follows:
On February 5, 2008, an NPRM was
published (73 FR 6642) which included
a supplemental Preliminary Regulatory
Assessment of the costs and benefits of
the proposed rule. The comment period
ended on May 5, 2008. No comments
were received on the Preliminary
Regulatory Assessment. Prior to
developing the Final Regulatory
Assessment, we confirmed that the data
contained in the Preliminary Regulatory
Assessment had not changed.
There are two regulatory costs of this
rule:
Regulatory Cost 1: The rule increases
the cost to responsible parties associated
with application for and certification of
COFRs. This rule increases the cost per
application from $150 to $200 and the
cost per certification from $80 to $100.
We estimate that there will be 1,600
COFR application fees submitted per
year and 8,600 COFR certification fees
submitted per year for the foreseeable
future. The aggregated annual increase
in cost due to these fee increases is
approximately $252,000 per year.
Regulatory Cost 2: The rule increases
the cost associated with establishing
financial responsibility under 33 CFR
part 138. This occurs in two ways:
Responsible parties using commercial
insurance as their method of guaranty
will incur higher insurance premiums;
and, responsible parties using selfinsurance as their method of guaranty
will need to seek out and acquire
commercial insurance for vessels they
operate that are no longer eligible for
self-insurance based on their working
capital and net worth.
There are approximately 16,982
vessels using commercial insurance and
823 vessels using self insurance
methods of guaranty. The 10-year
present value of this regulatory cost at
a 3 percent discount rate is between
$73.8 million and $83.4 million. The 10year present value of this regulatory cost
at a 7 percent discount rate is between
$63.3 million and $71.9 million. The
ranges reflect two vessel profiles that
were developed and analyzed separately
to account for the uncertainty, due to

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data gaps, of when existing singlehulled tank vessels will be phased out.
The 10-year present value of the total
cost of the rule (Regulatory Cost 1 +
Regulatory Cost 2) at a 3 percent
discount rate is between $76 million
and $85.6 million. The 10-year present
value of the total cost of the rule
(Regulatory Cost 1 + Regulatory Cost 2)
at a 7 percent discount rate is between
$65.2 million and $73.8 million.
There are two regulatory benefits of
this rule: First, the rule aligns the
financial responsibility amounts for
vessels in 33 CFR part 138 in subpart A
with the amended statutory limits of
liability under OPA 90, as specified in
33 U.S.C. 2704. This ensures the ability
of responsible parties to meet their
maximum liability limit under OPA 90
in the event of an incident. Second, the
rule eliminates the burden on owners
and operators of maintaining COFRs
onboard vessels.
B. Small Entities
Under the Regulatory Flexibility Act
(5 U.S.C. 601–612), we have considered
whether this rule would 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.
A Final Regulatory Flexibility
Analysis (FRFA) discussing the impact
of this rule on small entities is available
in the docket where indicated under the
ADDRESSES section of this preamble.
The NPRM for this rulemaking
published on February 5, 2008 (73 FR
6642) included an Initial Regulatory
Flexibility Analysis (IRFA) which
quantified the economic impacts to
small entities of the proposed rule. The
comment period ended on May 5, 2008.
No comments were received on either
the IRFA or with respect to any aspects
of the NPRM that might concern small
entities. Prior to developing the FRFA,
we confirmed that the data contained in
the IRFA had not changed.
In our analysis, we researched vessel
operator size and revenue data using
public and proprietary business
databases. We then determined which
entities were small based on the U.S.
Small Business Administration’s criteria
as they pertain to business size
standards for all sectors of the North
American Industry Classification
System (NAICS).
There are an estimated 600 small
entities affected by this rule. We found
that 82 distinct NAICS codes are

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represented in the population of small
entities (of which 32 contained more
than 5 entities). The available data
indicate that: increases in insurance
premiums will result in an average
annual cost of $523 per vessel, increases
in self-insurer costs will result in an
average annual cost of $7,200 per vessel,
and increases in COFR application fees
will result in an average annual cost of
$12 per vessel.
The data further indicate that, of the
small entities impacted, 92 percent will
experience an annual economic impact
that is less than 1 percent of their
annual sales. Furthermore, 98 percent of
the small entities will experience an
economic impact less than 3 percent of
their total sales. Two percent will
experience an annual economic impact
that is equal to or greater than 3 percent
of their annual sales and none will
experience an annual economic annual
impact greater than 10 percent of their
annual sales. Based on this analysis, we
believe that implementation of this rule
would not have a significant economic
impact on a substantial number of small
entities under 5 U.S.C. 605(b).
Therefore, the Coast Guard certifies
under 5 U.S.C. 605(b) that this final 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 (Pub. L. 104–121),
we offered in the NPRM to assist small
entities in understanding the rule so
that they could better evaluate its effects
on them and participate in the
rulemaking. No assistance was
requested from small entities.
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).
D. Collection of Information
This rule calls for a new collection of
information 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

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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) and Limits of
Liability.
Summary of the Collection of
Information: Not later than 90 days after
the effective date of this regulation,
operators are required to establish
evidence of financial responsibility to
the amended applicable amounts in
§ 138.80(f).
This rule eliminates the existing
recordkeeping burden associated with
33 CFR part 138, and revises the current
information collection entitled,
Financial Responsibility for Water
Pollution (Vessels) (Office of
Management and Budget control
number 1625–0046, approved December
7, 2006).
Need for Information: This
information collection is necessary to
enforce this rule. Without this
collection, it would not be possible for
the Coast Guard to know which
operators were in compliance with the
amended financial responsibility
applicable amounts determined under
§ 138.80(f), and which were not. Vessels
not in compliance will be subject to the
penalties provided under § 138.140.
Use of Information: The Coast Guard
will use this information to verify that
vessel operators have established
evidence of financial responsibility to
reflect the amended financial
responsibility applicable amounts
determined under § 138.80(f).
Description of the Respondents:
Operators, as this term is defined in 33
CFR part 138, subpart A, and guarantors
of vessels that require COFRs under 33
CFR part 138, Subpart A.
Number of Respondents: There are
approximately 900 United States
operators, 9,000 foreign operators and
100 guarantors of vessels that will
submit information to the Coast Guard.
Frequency of Response: This is a onetime submission occurring not later than
90 days after the effective date of this
regulation. Subsequent submissions that
may be required as a result of regulatory
changes to limits of liability under 33
U.S.C. 2704(d) are not included here
because they will be addressed in future
rulemakings.
Burden of Response:
Increased burden associated with
reporting requirements: 10,000

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respondents × 1.0 hours per response =
10,000 hours.
Reduced burden associated with
recordkeeping requirements: 9,900
respondents × 0.0138 hours/respondent
= 137 hours.
Estimate of Total Annual Burden: We
used the ‘‘All Occupations’’ average
hourly wage of $18.21 per hour, found
in the May 2005 National Occupational
Employment and Wage Estimates
United States, published by the
Department of Labor’s Bureau of Labor
Statistics, and applied a 43 percent
overhead factor to estimate employee
benefits to calculate the burdened labor
rate. Bureau of Labor Statistics data
show that total employee benefits is
approximately 30 percent of total
compensation. By applying a benefit
factor of 43 percent to the hourly wage,
we calculated total compensation:
$18.21 per hour + ($18.21 per hour × 43
percent) = $26 per hour.
We then multiplied the number of net
burden hours by the burdened labor rate
calculated above.
Increased burden associated with
reporting requirements: 10,000 hours ×
$26 per hour = $260,000.
Reduced burden associated with
recordkeeping requirements: 137 hours
× $26 per hour = $3,562.
As required by 44 U.S.C. 3507(d), we
submitted a copy of the proposed rule
to the Office of Management and Budget
(OMB) for its review of the collection of
information. OMB has yet to complete
its review of this collection. Therefore,
§ 138.85 may not be enforced until this
collection is approved by OMB. We will
publish notice in the Federal Register of
OMB’s decision to approve, modify, or
disapprove the collection.
You are not required to respond to a
collection of information unless it
displays a currently valid OMB control
number.
E. Federalism
A rule has implications for federalism
under Executive Order 13132,
Federalism, if it has a substantial direct
effect on State or local governments and
would either preempt State law or
impose a substantial direct cost of
compliance on them. We have analyzed
this rule under that Order and have
determined that it does not have
implications for federalism.
F. Unfunded Mandates Reform Act
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

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aggregate, or by the private sector of
$100,000,000 or more in any one year.
Though this rule will not result in such
an expenditure, we do discuss the
effects of this rule elsewhere in this
preamble.
G. Taking of Private Property
This rule will not effect 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
does not create an environmental risk to
health or risk to safety that may
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 does 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
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 (NTTAA) (15
U.S.C. 272 note) directs agencies to use
voluntary consensus standards in their
regulatory activities unless the agency
provides Congress, through the Office of
Management and Budget, with an
explanation of why using these
standards would be inconsistent with

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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
Commandant Instruction M16475.lD
and Department of Homeland Security
Management Directive 5100.1, which
guide the Coast Guard in complying
with the National Environmental Policy
Act of 1969 (NEPA) (42 U.S.C. 4321–
4370f), and have concluded that there
are no factors in this case that would
limit the use of a categorical exclusion
under section 2.B.2 of the Instruction.
Therefore, this rule is categorically
excluded, under figure 2–1, paragraph
(34)(a), of the Instruction, from further
environmental documentation. This
rulemaking only addresses the
requirements under 33 U.S.C. 2716 for
vessels to provide evidence of financial
responsibility. It has no effect on the
environment. A final environmental
analysis checklist and a final categorical
exclusion determination are available in
the docket where indicated under
ADDRESSES.
List of Subjects in 33 CFR Part 138
Hazardous materials transportation,
Insurance, Oil pollution, Reporting and
recordkeeping requirements, Water
pollution control.
■ For the reasons discussed in the
preamble, the Coast Guard revises 33
CFR part 138 as follows:

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PART 138—FINANCIAL
RESPONSIBILITY FOR WATER
POLLUTION (VESSELS) AND OPA 90
LIMITS OF LIABILITY (VESSELS AND
DEEPWATER PORTS)
Subpart A—Financial Responsibility for
Water Pollution (Vessels)
Sec.
138.10 Scope.
138.15 Applicability.
138.20 Definitions.
138.30 General.
138.40 Forms.
138.45 Where to apply for and renew
Certificates.
138.50 Time to apply.
138.60 Applications, general instructions.
138.65 Issuance of Certificates.
138.70 Renewal of Certificates.
138.80 Financial responsibility, how
established.

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138.85 Implementation schedule for
amendments to applicable amounts by
regulation.
138.90 Individual and Fleet Certificates.
138.100 Non-owning operator’s
responsibility for identification.
138.110 Master Certificates.
138.120 Certificates, denial or revocation.
138.130 Fees.
138.140 Enforcement.
138.150 Service of process.
Subpart B—OPA 90 Limits of Liability
(Vessels and Deepwater Ports)
138.200 Scope.
138.210 Applicability.
138.220 Limits of liability.
Authority: 33 U.S.C. 2716, 2716a; 42 U.S.C.
9608, 9609; Sec. 1512 of the Homeland
Security Act of 2002, Pub. L. 107–296 , Title
XV, Nov. 25, 2002, 116 Stat. 2310 (6 U.S.C.
552); E.O. 12580, Sec. 7(b), 3 CFR, 1987
Comp., p. 198; E.O. 12777, 3 CFR, 1991
Comp., p. 351; E.O. 13286, Sec. 89 (68 FR
10619, Feb. 28, 2003); Department of
Homeland Security Delegation Nos. 0170.1
and 5110. Section 138.30 also issued under
the authority of 46 U.S.C. 2103, 46 U.S.C.
14302.

Subpart A—Financial Responsibility
for Water Pollution (Vessels)
§ 138.10

Scope.

This subpart sets forth the procedures
by which an operator of a vessel must
establish and maintain, for itself and for
the owners and demise charterers of the
vessel, evidence of financial
responsibility required by Section
1016(a) of the Oil Pollution Act of 1990,
as amended (OPA 90) (33 U.S.C. 2716),
and Section 108 of the Comprehensive
Environmental Response,
Compensation, and Liability Act of
1980, as amended (CERCLA) (42 U.S.C.
9608), equal to the total applicable
amount determined under this subpart
and sufficient to cover their liability
arising under—
(a) Sections 1002 and 1004 of OPA 90
(33 U.S.C. 2702, 2704); and
(b) Section 107 of CERCLA (42 U.S.C.
9607).
§ 138.15

Applicability.

(a) This subpart applies to the
operator as defined herein of —
(1) A tank vessel of any size, and a
foreign-flag vessel of any size, 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
(2) Any vessel using the navigable
waters of the United States or any port
or other place subject to the jurisdiction
of the United States, including a vessel
using an offshore facility subject to the
jurisdiction of the United States,
except—

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(i) A vessel that is 300 gross tons or
less; or
(ii) A non-self-propelled barge that
does not carry oil as cargo or fuel and
does not carry hazardous substances as
cargo.
(b) For the purposes of financial
responsibility under OPA 90, a mobile
offshore drilling unit is treated as a tank
vessel when it is being used as an
offshore facility and there is a discharge,
or a substantial threat of a discharge, of
oil on or above the surface of the water.
A mobile offshore drilling unit is treated
as a vessel other than a tank vessel
when it is not being used as an offshore
facility.
(c) In addition to a non-self-propelled
barge over 300 gross tons that carries
hazardous substances as cargo, for the
purposes of financial responsibility
under CERCLA, this subpart applies to
a self-propelled vessel over 300 gross
tons, even if it does not carry hazardous
substances.
(d) This subpart does not apply to
operators of public vessels.
§ 138.20

Definitions.

(a) As used in this subpart, the
following terms have the meaning as set
forth in—
(1) Section 1001 of the Oil Pollution
Act of 1990 (33 U.S.C. 2701), respecting
the financial responsibility referred to in
§ 138.10(a): claim, claimant, damages,
discharge, exclusive economic zone,
liable, liability, navigable waters, mobile
offshore drilling unit, natural resources,
offshore facility, oil, owner or operator,
person, remove, removal, removal costs,
security interest, and United States; and
(2) Section 101 of the Comprehensive
Environmental Response,
Compensation, and Liability Act (42
U.S.C. 9601), respecting the financial
responsibility referred to in § 138.10(b):
claim, claimant, damages, environment,
hazardous substance, liable, liability,
navigable waters, natural resources,
offshore facility, owner or operator,
person, release, remove, removal,
security interest, and United States.
(b) As used in this subpart —
Acts means OPA 90 and CERCLA.
Applicable amount means an amount
of financial responsibility that must be
demonstrated under this subpart,
determined under § 138.80(f)(1) for OPA
90 or § 138.80(f)(2) for CERCLA.
Applicant means an operator who has
applied for a Certificate or for the
renewal of a Certificate under this
subpart.
Application means an Application for
Vessel Certificate of Financial
Responsibility (Water Pollution) (Form
CG–5585), which can be obtained from
the U.S. Coast Guard National Pollution

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Funds Center as provided in §§ 138.40
and 138.45.
Cargo means goods or materials 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 title I of the
Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980, as amended (42 U.S.C.
9601–9675).
Certificant means an operator who has
a current Certificate issued by the U.S.
Coast Guard National Pollution Funds
Center (NPFC) under this subpart.
Certificate means a Vessel Certificate
of Financial Responsibility (Water
Pollution) (Form CG–5585) issued by
the NPFC under this subpart, as
provided in § 138.65.
Day or days means calendar days. If
a deadline specified in this subpart falls
on a weekend or Federal holiday, the
deadline will occur on the next working
day. Compliance with a submission
deadline will be determined based on
the day the submission is received by
NPFC.
Director, NPFC means the head of the
NPFC.
E–COFR means the Electronic
Certificate of Financial Responsibility
web-based process located on the NPFC
Web site (http://www.npfc.gov/cofr),
which may be used by operators to
apply for and renew Certificates.
Financial guarantor means a
guarantor who provides a financial
guaranty under § 138.80(b)(4), and is
distinct from an insurer, a self-insurer or
a surety.
Financial responsibility means the
statutorily required financial ability to
meet a responsible party’s liability
under the Acts.
Fish tender vessel and fishing vessel
have the same meaning as set forth in
46 U.S.C. 2101.
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 not more
than five 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, other
than a responsible party, who provides
evidence of financial responsibility
under the Acts on behalf of a vessel’s
responsible parties. A responsible party
who can qualify as a self-insurer under
§ 138.80(b)(3) may act as both a selfinsurer of vessels owned, operated or
demise chartered by the responsible
party, and as a financial guarantor for

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the responsible parties of other vessels
under § 138.80(b)(4).
Hazardous material means a liquid
material or substance that is—
(1) Flammable or combustible;
(2) A hazardous substance designated
under Section 311(b) of the Federal
Water Pollution Control Act (33 U.S.C.
1321(b)); or
(3) Designated a hazardous material
under the Hazardous Materials
Transportation Act, Section 104 (46
U.S.C. 5103(a)) (1994).
Incident means any occurrence or
series of occurrences having the same
origin, involving one or more vessels,
facilities, or any combination thereof,
resulting in the discharge or substantial
threat of discharge of oil into or upon
the navigable waters or adjoining
shorelines or the exclusive economic
zone.
Insurer is a type of guarantor and
means one or more insurance
companies, associations of
underwriters, ship owners’ protection
and indemnity associations, or other
persons, each of which must be
acceptable to the Director, NPFC.
Master Certificate means a Certificate
issued under this subpart to a person
who is a builder, repairer, scrapper,
lessor, or seller of a vessel and is acting
as the vessel’s operator.
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 (33 U.S.C. 2701, et seq.).
Operator means a person who is an
owner, a demise charterer, or other
contractor, who conducts the operation
of, or who is responsible for the
operation of, a vessel. A builder,
repairer, scrapper, lessor, or seller who
is responsible, or who agrees by contract
to become responsible, for a vessel is an
operator. A time or voyage charterer that
does not assume responsibility for the
operation of a vessel is not an operator
for the purposes of this subpart.
Owner means any person holding
legal or equitable title to a vessel. In a
case where a U.S. Coast Guard
Certificate of Documentation or
equivalent document has been issued,
the owner is considered to be the person
or persons whose name or names appear
thereon as owner. Owner does not
include a person who, without
participating in the management of a
vessel, holds indicia of ownership
primarily to protect the owner’s security
interest in the vessel.
Public vessel means a vessel owned or
bareboat chartered by the United States,
or by a State or political subdivision
thereof, or by a foreign nation, except
when the vessel is engaged in
commerce.

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Responsible party, for purposes of
OPA 90 financial responsibility has the
same meaning as defined at 33 U.S.C.
2701(32), and for purposes of CERCLA
financial responsibility means any
person who is an owner or operator, as
defined at 42 U.S.C. 9601(20), including
any person chartering a vessel by
demise.
Self-elevating lift vessel means a
vessel with movable legs capable of
raising its hull above the surface of the
sea and that is an offshore work boat
(such as a work barge) that does not
engage in drilling operations.
Tank vessel means a vessel (other
than an offshore supply vessel, a fishing
vessel or a fish tender vessel of 750
gross tons or less that transfers fuel
without charge to a fishing vessel
owned by the same person, or a towing
or pushing vessel (tug) simply because
it has in its custody a tank barge) that
is constructed or adapted to carry, or
that carries, oil or liquid hazardous
material in bulk as cargo or cargo
residue, and that—
(1) Is a vessel of the United States;
(2) Operates on the navigable waters;
or
(3) Transfers oil or hazardous material
in a place subject to the jurisdiction of
the United States.
Total applicable amount means the
amount determined under § 138.80(f)(3).
Vessel means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a
means of transportation on water.
§ 138.30

General.

(a) The regulations in this subpart set
forth the procedures for an operator of
a vessel subject to this subpart to
demonstrate that the responsible parties
of the vessel are financially able to meet
their potential liability for costs and
damages in the applicable amounts set
forth in this subpart at § 138.80(f).
Although the owners, operators, and
demise charterers of a vessel are strictly,
jointly and severally liable under OPA
90 and CERCLA for the costs and
damages resulting from each incident or
release or threatened release, together
they need only establish and maintain
evidence of financial responsibility
under this subpart equal to the
combined OPA 90 and CERCLA limits
of liability arising from a single incident
and a single release, or threatened
release. Only that portion of the total
applicable amount of financial
responsibility demonstrated under this
subpart with respect to—
(1) OPA 90 is required to be made
available by a vessel’s responsible
parties and guarantors for the costs and
damages related to an incident where

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there is not also a release or threatened
release; and
(2) CERCLA is required to be made
available by a vessel’s responsible
parties and guarantors for the costs and
damages related to a release or
threatened release where there is not
also an incident. A guarantor (or a selfinsurer for whom the exceptions to
limitations of liability are not
applicable), therefore, is not required to
apply the entire total applicable amount
of financial responsibility demonstrated
under this subpart to an incident
involving oil alone or a release or
threatened release involving a
hazardous substance alone.
(b) Where a vessel is operated by its
owner or demise charterer, or the owner
or demise charterer is responsible for its
operation, the owner or demise
charterer is considered to be the
operator for purposes of this subpart,
and must submit the Application and
requests for renewal for a Certificate. In
all other cases, the vessel operator must
submit the Application or requests for
renewal.
(c) For a United States-flag vessel, the
applicable gross tons or gross tonnage,
as referred to in this part, is determined
as follows:
(1) For a documented U.S. vessel
measured under both 46 U.S.C. Chapters
143 (Convention Measurement) and 145
(Regulatory Measurement). The vessel’s
regulatory gross tonnage is used to
determine whether the vessel exceeds
300 gross tons where that threshold
applies under the Acts. If the vessel’s
regulatory gross tonnage is determined
under the Dual Measurement System in
46 CFR part 69, subpart D, the higher
gross tonnage is the regulatory gross
tonnage for the purposes of determining
whether the vessel meets the 300 gross
ton threshold. The vessel’s gross
tonnage as measured under the
International Convention on Tonnage
Measurement of Ships, 1969
(Convention), is used to determine the
vessel’s required applicable amounts of
financial responsibility, and limit of
liability under Section 1004 of OPA 90
(33 U.S.C. 2704), including subpart B of
this part, and Section 107 of CERCLA
(42 U.S.C. 9607).
(2) For all other United States vessels.
The vessel’s gross tonnage under 46 CFR
part 69 is used for determining the
vessel’s 300 gross ton threshold, the
required applicable amounts of financial
responsibility, and limits of liability
under Section 1004 of OPA 90 (33
U.S.C. 2704), including subpart B of this
part, and Section 107 of CERCLA (42
U.S.C. 9607). If the vessel’s gross
tonnage is determined under the Dual

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Measurement System, the higher gross
tonnage is used in all determinations.
(d) For a vessel of a foreign country
that is a party to the Convention, gross
tons or gross tonnage, as referred to in
this part, is determined as follows:
(1) For a vessel assigned, or presently
required to be assigned, gross tonnage
under Annex I of the Convention. The
vessel’s gross tonnage as measured
under Annex I of the Convention is used
for determining the 300 gross ton
threshold, if applicable, the required
applicable amounts of financial
responsibility, and limits of liability
under Section 1004(a) of OPA 90 (33
U.S.C. 2704), including subpart B of this
part, and under Section 107 of CERCLA
(42 U.S.C. 9607).
(2) For a vessel not presently required
to be assigned gross tonnage under
Annex I of the Convention. The highest
gross tonnage that appears on the
vessel’s U.S. Coast Guard Certificate of
Documentation or equivalent document
and that is acceptable to the Coast
Guard under 46 U.S.C. chapter 143 is
used for determining the 300 gross ton
threshold, if applicable, the required
applicable amounts of financial
responsibility, and limits of liability
under Section 1004 of OPA 90 (33
U.S.C. 2704), including subpart B of this
part, and Section 107 of CERCLA (42
U.S.C. 9607). If the vessel has no
document, or the gross tonnage
appearing on the document is not
acceptable under 46 U.S.C. chapter 143,
the vessel’s gross tonnage is determined
by applying the Convention
Measurement System under 46 CFR part
69, subpart B, or if applicable, the
Simplified Measurement System under
46 CFR part 69, subpart E. The
measurement standards applied are
subject to applicable international
agreements to which the United States
Government is a party.
(e) For a vessel of a foreign country
that is not a party to the Convention,
gross tons or gross tonnage, as referred
to in this part, is determined as follows:
(1) For a vessel measured under laws
and regulations found by the
Commandant to be similar to Annex I of
the Convention. The vessel’s gross
tonnage under the similar laws and
regulations is used for determining the
300 gross ton threshold, if applicable,
the required applicable amounts of
financial responsibility, and limits of
liability under Section 1004 of OPA 90
(33 U.S.C. 2704), including subpart B of
this part, and Section 107 of CERCLA
(42 U.S.C. 9607). The measurement
standards applied are subject to
applicable international agreements to
which the United States Government is
a party.

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(2) For a vessel not measured under
laws and regulations found by the
Commandant to be similar to Annex I of
the Convention. The vessel’s gross
tonnage under 46 CFR part 69, subpart
B, or, if applicable, subpart E, is used for
determining the 300 gross ton threshold,
if applicable, the required applicable
amount of financial responsibility, and
the limits of liability under Section 1004
of OPA 90 (33 U.S.C. 2704), including
subpart B of this part, and Section 107
of CERCLA (42 U.S.C. 9607). The
measurement standards applied are
subject to applicable international
agreements to which the United States
is a party.
(f) A person who agrees to act as a
guarantor or a self-insurer is bound by
the vessel’s gross tonnage as determined
under paragraphs (c), (d), or (e) of this
section, regardless of what gross tonnage
is specified in an Application or
guaranty form submitted under this
subpart. Guarantors, however, may limit
their liability under a guaranty of
financial responsibility to the applicable
gross tonnage appearing on a vessel’s
International Tonnage Certificate or
other official, applicable certificate of
measurement and will not incur any
greater liability with respect to that
guaranty, except when the guarantors
knew or should have known that the
applicable tonnage certificate was
incorrect.
§ 138.40

Forms.

All forms referred to in this subpart
may be obtained from NPFC by
requesting them in writing at the
address given in § 138.45(a) or by
clicking on the Forms link at the NPFC
E–COFR Web site, http://www.npfc.gov/
cofr.
§ 138.45 Where to apply for and renew
Certificates.

(a) An operator must submit all
Applications for a Certificate and all
requests for renewal of a Certificate,
together with all evidence of financial
responsibility required under § 138.80
and all fees required under § 138.130, to
the NFPC at the following address: U.S.
Coast Guard, National Pollution Funds
Center (Cv), 4200 Wilson Boulevard,
Suite 1000, Arlington, VA 22203–1804,
telephone (202) 493–6780, Telefax (202)
493–6781; or electronically using
NPFC’s E–COFR Web-based process at
http://www.npfc.gov/cofr.
(b) All requests you have for
assistance in completing Applications,
requests for renewal and other
submissions under this subpart,
including telephone inquiries, should
be directed to the U.S. Coast Guard

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NPFC at the addresses in paragraph (a)
of this section.
§ 138.50

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(a) A vessel operator who wishes to
obtain a Certificate must submit a
completed Application form and all
required supporting evidence of
financial responsibility, and must pay
all applicable fees, at least 21 days prior
to the date the Certificate is required.
The Director, NPFC, may grant an
extension of this 21-day deadline upon
written request and for good cause
shown. An applicant seeking an
extension of this deadline must set forth
the reasons for the extension request
and deliver the request to the Director,
NPFC, at least 15 days before the
deadline. The Director, NPFC, will not
consider a request for an extension of
more than 60 days.
(b) The Director, NPFC, generally
processes Applications and requests for
renewal in the order in which they are
received at the NPFC.

issue a Vessel Certificate of Financial
Responsibility (Water Pollution) (Form
CG–5585) in electronic form. Copies of
the Certificate may be downloaded from
NPFC’s E–COFR Web site.
§ 138.70

Renewal of Certificates.

(a) The operator of a vessel required
to have a Certificate under this subpart
must submit a written or E–COFR
request for renewal of the Certificate to
the NPFC at least 21 days, but not
earlier than 90 days, before the
expiration date of the Certificate. A
letter may be used for this purpose. The
request for renewal must comply in all
other respects with the requirements in
§ 138.60 concerning Applications. The
Director, NPFC, may waive this 21-day
requirement for good cause shown.
(b) The operator must identify in the
request for renewal any changes which
have occurred since the original
Application for a Certificate was filed,
and must set forth the correct
information in full.

§ 138.60 Applications, general
instructions.

§ 138.80 Financial responsibility, how
established.

(a) You may obtain an Application for
Vessel Certificate of Financial
Responsibility (Water Pollution) (Form
CG–5585) by following the instructions
in §§ 138.40 and 138.45.
(b) Your Application and all
supporting documents must be in
English, and express all monetary terms
in United States dollars.
(c) An authorized official of the
applicant must sign the signature page
of the Application. The title of the
signer must be shown in the space
provided on the Application. The
operator must submit the original
signature page of the Application to
NPFC in hard copy.
(d) If the signer is not identified on
the Application as an individual (sole
proprietor) applicant, a partner in a
partnership applicant, or a director,
chief executive officer, or any other duly
authorized officer of a corporate
applicant, the Application must be
accompanied by a written statement
certifying the signer’s authority to sign
on behalf of the applicant.
(e) If, before the issuance of a
Certificate, the applicant becomes aware
of a change in any of the facts contained
in the Application or supporting
documentation, the applicant must,
within 5 business days of becoming
aware of the change, notify the Director,
NPFC, in writing, of the changed facts.

(a) General. In addition to submitting
an Application, requests for renewal,
and fees, an applicant must file, or
cause to be filed, with the Director,
NPFC, evidence of financial
responsibility acceptable to the Director,
NPFC, in an amount equal to the total
applicable amount determined under
§ 138.80(f)(3). A guarantor may file the
evidence of financial responsibility on
behalf of the applicant directly with the
Director, NPFC.
(b) Methods. An applicant or
certificant must establish and maintain
evidence of financial responsibility by
one or more of the following methods:
(1) Insurance. By filing with the
Director, NPFC, an Insurance Guaranty
(Form CG–5586) or, when applying for
a Master Certificate under § 138.110, a
Master Insurance Guaranty (Form CG–
5586–1), executed by not more than four
insurers that have been found
acceptable by, and remain acceptable to,
the Director, NPFC, for purposes of this
subpart.
(2) Surety bond. By filing with the
Director, NPFC, a Surety Bond Guaranty
(Form CG–5586–2), executed by not
more than 10 acceptable surety
companies certified by the United States
Department of the Treasury with respect
to the issuance of Federal bonds in the
maximum penal sum of each bond to be
issued under this subpart.
(3) Self-insurance. By filing with the
Director, NPFC, the financial statements
specified in paragraph (b)(3)(i) of this
section for the applicant’s fiscal year
preceding the date of Application and

§ 138.65

Issuance of Certificates.

Upon the satisfactory demonstration
of financial responsibility and payment
of all fees due, the Director, NPFC, will

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by demonstrating that the applicant or
certificant maintains, in the United
States, working capital and net worth
each in amounts equal to or greater than
the total applicable amount determined
under § 138.80(f)(3), based on a vessel
carrying hazardous substances as cargo.
As used in this paragraph, working
capital means the amount of current
assets located in the United States, less
all current liabilities anywhere in the
world; and net worth means the amount
of all assets located in the United States,
less all liabilities anywhere in the
world. For each fiscal year after the
initial filing, the applicant or certificant
must also submit statements as follows:
(i) Initial and annual filings. An
applicant or certificant must submit
annual, current, and audited nonconsolidated 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.
These financial statements must be
accompanied by an additional statement
from the Treasurer (or equivalent
official) of the applicant or certificant
certifying both the amount of current
assets and the amount of total assets
included in the accompanying balance
sheet, which are located in the United
States. If the financial statements cannot
be submitted in non-consolidated form,
a consolidated statement may be
submitted if accompanied by an
additional statement prepared by the
same Certified Public Accountant,
verifying the amount by which the
applicant’s or certificant’s—
(A) Total assets located in the United
States exceed its total (i.e., worldwide)
liabilities; and
(B) Current assets located in the
United States exceed its total (i.e.,
worldwide) current liabilities. This
additional Certified Public Accountant
statement must specifically name the
applicant or certificant, indicate that the
amounts so verified relate only to the
applicant or certificant, apart from any
other affiliated entity, and identify the
consolidated financial statement to
which it applies.
(ii) Semiannual self-insurance
submissions. When the self-insuring
applicant’s or certificant’s demonstrated
net worth is not at least ten times the
total applicable amount of financial
responsibility determined under
§ 138.80(f)(3), the applicant’s or
certificant’s Treasurer (or equivalent
official) must file affidavits with the
Director, NPFC, covering the first six
months of the applicant’s or certificant’s
current fiscal year. The affidavits must
state that neither the working capital

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nor the net worth have, during the first
six months of the current fiscal year,
fallen below the applicant’s or
certificant’s required total applicable
amount of financial responsibility as
determined under this subpart.
(iii) Additional self-insurance
submissions. A self-insuring applicant
or certificant—
(A) Must, upon request of the
Director, NPFC, within the time
specified in the request, file additional
financial information; and
(B) Must notify the Director, NPFC,
within 5 business days of the date the
applicant or certificant knows, or has
reason to know, that its working capital
or net worth has fallen below the total
applicable amounts required by this
subpart.
(iv) Time for self-insurance filings. All
required annual financial statements
must be received by the Director, NPFC,
within 90 days after the close of the
applicant’s or certificant’s fiscal year,
and all affidavits required by paragraph
(b)(3)(ii) of this section must be received
by the Director, NPFC, within 30 days
after the close of the applicable sixmonth period. The Director, NPFC, may
grant an extension of the time limits for
filing the annual financial statements,
semi-annual affidavits or additional
financial information upon written
request and for good cause shown. An
applicant or certificant seeking an
extension of any deadline must set forth
the reasons for the extension request
and deliver the request to the Director,
NPFC, at least 15 days before the annual
financial statements, affidavits or
additional information are due. The
Director, NPFC, will not consider a
request for an extension of more than 60
days.
(v) Failure to submit. The Director,
NPFC, may deny or revoke a Certificate
for failure of the applicant or certificant
to timely file any statement, data,
notification, or affidavit required by
paragraph (b)(3) of this section.
(vi) Waiver of working capital. The
Director, NPFC, may waive the working
capital requirement for any applicant or
certificant that—
(A) 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 Section 501(c) Internal
Revenue Code. The applicant or
certificant must demonstrate in writing
that the grant of a waiver would benefit
a local public interest; or
(B) Demonstrates in writing that
working capital is not a significant
factor in the applicant’s or certificant’s
financial condition. An applicant’s or
certificant’s net worth in relation to the

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amount of its required total applicable
amount of financial responsibility and a
history of stable operations are the
major elements considered by the
Director, NPFC.
(4) Financial Guaranty. By filing with
the Director, NPFC, a Financial
Guaranty (Form CG–5586–3), or, when
applying for a Master Certificate, a
Master Financial Guaranty (Form CG–
5586–4), executed by not more than four
financial guarantors, including, but not
limited to, a parent or affiliate
acceptable to the Director, NPFC. A
financial guarantor must comply with
all of the self-insurance provisions of
paragraph (b)(3) of this section. In
addition, a person who is a financial
guarantor for more than one applicant or
certificant must have working capital
and net worth no less than the aggregate
total applicable amounts of financial
responsibility determined under
§ 138.80(f)(3) provided as a financial
guarantor for each applicant or
certificant, plus 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.
(5) Other evidence of financial
responsibility. The Director, NPFC, will
not accept a self-insurance method other
than the one described in paragraph
(b)(3) of this section. An applicant may
in writing request that the Director,
NPFC, accept a method different from
one described in paragraph (b)(1), (2), or
(4) of this section to demonstrate
evidence of financial responsibility. An
applicant submitting a request under
this paragraph must submit the request
to the Director, NPFC, at least 45 days
prior to the date the Certificate is
required. The applicant must describe
in detail the method proposed, the
reasons why the applicant does not
wish to use or is unable to use one of
the methods described in paragraph
(b)(1), (2), or (4) of this section, and how
the proposed method assures that the
responsible parties for the vessel are
able to fulfill their obligations to pay
costs and damages in the event of an
incident or a release or threatened
release. The Director, NPFC, will not
accept a method under this paragraph
that merely deletes or alters a provision
of one of the methods described in
paragraph (b)(1), (2), or (4) of this
section (for example, one that alters the
termination clause of the Insurance
Guaranty (Form CG–5586). An applicant
that makes a request under this
paragraph must provide the Director,
NPFC, a proposed guaranty form that
includes all the elements described in
paragraphs (c) and (d) of this section. A
decision of the Director, NPFC, not to

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accept a method requested by an
applicant under this paragraph is final
agency action.
(c) Forms—(1) Multiple guarantors.
Four or fewer insurers (a lead
underwriter is considered to be one
insurer) may jointly execute an
Insurance Guaranty (Form CG–5586) or
a Master Insurance Guaranty (Form CG–
5586–1). Ten or fewer sureties
(including lead sureties) may jointly
execute a Surety Bond Guaranty (Form
CG–5586–2). Four or fewer financial
guarantors may jointly execute a
Financial Guaranty (Form CG–5586–3).
If more than one insurer, surety, or
financial guarantor executes the relevant
form—
(i) Each is bound for the payment of
sums only in accordance with the
percentage of vertical participation
specified on the relevant form for that
insurer, surety, or financial guarantor.
Participation in the form of layering
(tiers, one in excess of another) is not
acceptable; only vertical participation
on a percentage basis and participation
with no specified percentage allocation
is acceptable. If no percentage of
participation is specified for an insurer,
surety, or financial guarantor, the
liability of that insurer, surety, or
financial guarantor is joint and several
for the total of the unspecified portions;
and
(ii) The guarantors must designate a
lead guarantor having authority to bind
all guarantors for actions required of
guarantors under the Acts, including but
not limited to receipt of designation of
source, advertisement of a designation,
and receipt and settlement of claims.
(2) Operator name. An applicant or
certificant must ensure that each form
submitted under this subpart sets forth
in full the correct legal name of the
vessel operator to whom a Certificate is
to be issued.
(d) Direct Action—(1)
Acknowledgment. Any evidence of
financial responsibility filed with the
Director, NPFC, under this subpart must
contain an acknowledgment by each
insurer or other guarantor that an action
in court by a claimant (including a
claimant by right of subrogation) for
costs or damages arising under the
provisions of the Acts, may be brought
directly against the insurer or other
guarantor. The evidence of financial
responsibility must also provide that, in
the event an action is brought under the
Acts directly against the insurer or other
guarantor, the insurer or other guarantor
may invoke only the following rights
and defenses:
(i) The incident, release, or threatened
release was caused by the willful

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misconduct of the person for whom the
guaranty is provided.
(ii) Any defense that the person for
whom the guaranty is provided may
raise under the Acts.
(iii) A defense that the amount of a
claim or claims, filed in any action in
any court or other proceeding, exceeds
the amount of the guaranty with respect
to an incident or with respect to a
release or threatened release.
(iv) A defense that the amount of a
claim or claims that exceeds the amount
of the guaranty, which amount is based
on the gross tonnage of the vessel as
entered on the vessel’s International
Tonnage Certificate or other official,
applicable certificate of measurement,
except when the guarantor knew or
should have known that the applicable
tonnage certificate was incorrect.
(v) The claim is not one made under
either of the Acts.
(2) Limitation on guarantor liability. A
guarantor that participates in any
evidence of financial responsibility
under this subpart will be liable because
of that participation, with respect to an
incident or a release or threatened
release, in any proceeding only for the
amount and type of costs and damages
specified in the evidence of financial
responsibility. A guarantor will not be
considered to have consented to direct
action under any law other than the
Acts, or to unlimited liability under any
law or in any venue, solely because of
the guarantor’s participation in
providing any evidence of financial
responsibility under this subpart. In the
event of any finding that liability of a
guarantor exceeds the amount of the
guaranty provided under this subpart,
that guaranty is considered null and
void with respect to that excess.
(e) Public access to data. Financial
data filed with the Director, NPFC, by
an applicant, certificant, and any other
person 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.
552a).
(f) Total applicable amount. The total
applicable amount is determined as
follows:
(1) The applicable amount under OPA
90 is equal to the applicable vessel limit
of liability, which is determined as
provided in subpart B of this part.
(2) The applicable amount under
CERCLA is determined as follows:
(i) For a vessel over 300 gross tons
carrying a hazardous substance as cargo,
the greater of $5,000,000 or $300 per
gross ton.
(ii) For any other vessel over 300 gross
tons, the greater of $500,000 or $300 per
gross ton.

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(3) The total applicable amount is the
applicable amount determined under
paragraph (f)(1) of this section plus the
applicable amount determined under
paragraph (f)(2) of this section.
§ 138.85 Implementation schedule for
amendments to applicable amounts by
regulation.

Each operator of a vessel described in
§ 138.15 must establish evidence of
financial responsibility acceptable to the
Director, NPFC, in an amount equal to
or greater than the total applicable
amounts determined under § 138.80(f),
by not later than January 15, 2009. In
the event an applicable amount
determined under § 138.80(f) is
thereafter amended by regulation, each
operator of a vessel described in
§ 138.15 must establish evidence of
financial responsibility acceptable to the
Director, NPFC, in an amount equal to
or greater than the amended total
applicable amount, by not later than 90
days after the effective date of the final
rule, unless another date is required by
statute or specified in the amending
regulation.
§ 138.90

Individual and Fleet Certificates.

(a) The Director, NPFC, issues an
individual Certificate for each vessel
listed on a completed Application or
request for renewal when the Director,
NPFC, determines that acceptable
evidence of financial responsibility has
been provided and appropriate fees
have been paid, except where a Fleet
Certificate is issued under this section
or where a Master Certificate is issued
under § 138.110. Each Certificate of any
type issued under this subpart is issued
only in the name of a vessel operator
and is effective for not more than 3
years from the date of issuance, as
indicated on each Certificate. An
authorized official of the applicant may
submit to the Director, NPFC, a letter
requesting that additional vessels be
added to a previously submitted
Application for an individual
Certificate. The letter must set forth all
information required in item 5 of the
Application form. The authorized
official must also file, or cause to be
filed with the Director, NPFC,
acceptable evidence of financial
responsibility, if required, and must pay
all applicable certification fees for the
additional vessels.
(b) An operator of a fleet of two or
more barges that are not tank vessels
and that from time to time may be
subject to this subpart (e.g., a hopper
barge over 300 gross tons when carrying
oily metal shavings or similar cargo)
may apply to the Director, NPFC, for
issuance of a Fleet Certificate, so long as

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the operator of such a fleet is a selfinsurer or arranges with an acceptable
guarantor to cover, automatically, all
such barges for which the operator may
from time to time be responsible.
(c) A person must not make any
alteration on any copy of a Certificate
issued under this subpart.
(d) If, at any time after a Certificate
has been issued, a certificant becomes
aware of a change in any of the facts
contained in the Application or
supporting documentation, the
certificant must notify the Director,
NPFC, in writing within 10 days of
becoming aware of the change. A vessel
or operator name change or change of a
guarantor must be reported by the
operator as soon as possible by telefax
or other electronic means to the
Director, NPFC, and followed by a
written notice sent within 3 business
days. (See, § 138.45, Where to apply for
and renew Certificates, for contact
information).
(e) Except as provided in § 138.90(f),
at the moment a certificant ceases to be
the operator of a vessel for any reason,
including a vessel that is scrapped or
transferred to a new operator, the
individual Certificate naming the vessel
is void and its further use is prohibited.
In that case, the certificant must, within
10 business days of the Certificate
becoming void, submit the following
information in writing to the Director,
NPFC:
(1) The number of the individual
Certificate and the name of the vessel.
(2) The date and reason why the
certificant ceased to be the operator of
the vessel.
(3) The location of the vessel on the
date the certificant ceased to be the
operator.
(4) The name and mailing address of
the person to whom the vessel was sold
or transferred.
(f) In the event of the temporary
transfer of custody of an unmanned
barge with a Certificate under this
subpart, where the certificant
transferring the barge continues to be
liable under the Acts and continues to
maintain on file with the Director,
NPFC, acceptable evidence of financial
responsibility with respect to the barge,
the existing Certificate remains in effect
in respect to that vessel, and a
temporary new Certificate is not
required for the vessel. The temporary
transferee is encouraged to require the
transferring certificant to acknowledge
in writing that the transferring
certificant agrees to remain responsible
for pollution liabilities.

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Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations
§ 138.100 Non-owning operator’s
responsibility for identification.

(a) Each operator that is not an owner
of a vessel with a Certificate under this
subpart, other than an unmanned barge,
must ensure that the original or a legible
copy of the demise charter-party (or
other written document on the owner’s
letterhead, signed by the vessel owner,
which specifically identifies the vessel
operator named on the Certificate) 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
a United States Government official.

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§ 138.110

Master Certificates.

(a) A contractor or other person who
is responsible for a vessel in the
capacity of a builder, scrapper, lessor, or
seller (including a repairer who agrees
to be responsible for a vessel under its
custody) may apply for a Master
Certificate instead of applying for an
individual Certificate or Fleet Certificate
for each vessel. A Master Certificate
covers all of the vessels subject to this
subpart held by the applicant solely for
purposes of construction, repair,
scrapping, lease, or sale. A vessel which
is being operated commercially in any
business venture, including the business
of building, repairing, scrapping,
leasing, or selling (e.g., a slop barge used
by a shipyard) cannot be covered by a
Master Certificate. Any vessel for which
a Certificate is required, but which is
not eligible for a Master Certificate,
must be covered by either an individual
Certificate or a Fleet Certificate.
(b) An applicant for a Master
Certificate must submit an Application
form in the manner prescribed by
§§ 138.40 through 138.60. An applicant
must establish evidence of financial
responsibility in accordance with
§ 138.80, by submission, for example, of
an acceptable Master Insurance
Guaranty Form, Surety Bond Guaranty
Form, Master Financial Guaranty Form,
or acceptable self-insurance
documentation. An Application for a
Master Certificate must be completed in
full, except for Item 5. The applicant
must make the following statement in
Item 5: ‘‘This is an application for a
Master Certificate. The largest tank
vessel to be covered by this application
is [insert applicable gross tons] gross
tons. The largest vessel other than a tank
vessel is [insert applicable gross tons]
gross tons.’’ The dollar amount of
financial responsibility evidenced by
the applicant must be sufficient to meet
the amount required under this subpart.
(c) Each Master Certificate issued by
the Director, NPFC, indicates—

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(1) The name of the applicant (i.e., the
builder, repairer, scrapper, lessor, or
seller);
(2) The date of issuance and
termination, encompassing a period of
not more than 3 years; and
(3) The gross tons of the largest tank
vessel and gross tons of the largest
vessel other than a tank vessel eligible
for coverage by that Master Certificate.
(The Master Certificate does not identify
the name of each vessel covered by the
Certificate.)
(d) Each additional vessel which does
not exceed the respective tonnages
indicated on the Master Certificate and
which is eligible for coverage by a
Master Certificate is automatically
covered by that Master Certificate.
Before acquiring a vessel, by any means,
including conversion of an existing
vessel, that would have the effect of
increasing the certificant’s required
applicable amount of financial
responsibility (above that provided for
issuance of the existing Master
Certificate), the certificant must submit
to the Director, NPFC, the following:
(1) Evidence of increased financial
responsibility.
(2) A new certification fee.
(3) Either a new Application or a
letter amending the existing Application
to reflect the new gross tonnage which
is to be indicated on a new Master
Certificate.
(e) A person to whom a Master
Certificate has been issued must submit
to the Director, NPFC, every six months
beginning the month after the month in
which the Master Certificate is issued, a
report indicating the name, previous
name, type, and gross tonnage of each
vessel covered by the Master Certificate
during the preceding six-month
reporting period and indicating which
vessels, if any, are tank vessels.
§ 138.120 Certificates, denial or
revocation.

(a) The Director, NPFC, may deny a
Certificate when an applicant—
(1) Willfully or knowingly makes a
false statement in connection with an
Application or other submission or
filing under this subpart for an initial or
renewal Certificate;
(2) Fails to establish acceptable
evidence of financial responsibility as
required by this subpart;
(3) Fails to pay the required
Application or certification fees;
(4) Fails to comply with or respond to
lawful inquiries, regulations, or orders
of the Coast Guard pertaining to the
activities subject to this subpart; or
(5) Fails to timely file with the
Director, NPFC, required statements,
data, notifications, or affidavits.

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53703

(b) The Director, NPFC, may revoke a
Certificate when a certificant—
(1) Willfully or knowingly makes a
false statement in connection with an
Application for an initial or a renewal
Certificate, or in connection with any
other filing required by this subpart;
(2) Fails to comply with or respond to
lawful inquiries, regulations, or orders
of the Coast Guard pertaining to the
activities subject to this subpart; or
(3) Fails to timely file with the
Director, NPFC, required statements,
data, notifications, or affidavits.
(c) A Certificate is immediately
invalid, and considered revoked,
without prior notice, when the
certificant—
(1) Fails to maintain acceptable
evidence of financial responsibility as
required by this subpart;
(2) Is no longer the responsible
operator of the vessel or fleet in
question; or
(3) Alters any copy of a Certificate.
(d) The Director, NPFC, will advise
the applicant or certificant, in writing,
of the intention to deny or revoke a
Certificate under paragraph (a) or (b) of
this section and will state the reason for
the decision. Written advice from the
Director, NPFC, that an incomplete
Application will be considered
withdrawn unless it is completed
within a stated period, is the equivalent
of a denial.
(e) If the intended revocation under
paragraph (b) of this section is based on
failure to timely file required financial
statements, data, notifications, or
affidavits with the Director, NPFC, the
revocation is effective 10 days after the
date of the notice of intention to revoke,
unless, before the effective date of the
revocation, the certificant demonstrates
to the satisfaction of the Director, NPFC,
that the required documents were
timely filed or have been filed.
(f) If the intended denial is based on
paragraph (a)(1) or (a)(4) of this section,
or the intended revocation is based on
paragraph (b)(1) or (b)(2) of this section,
the applicant or certificant may request,
in writing, an opportunity to present
information for the purpose of showing
that the applicant or certificant is in
compliance with the subpart. The
request must be received by the
Director, NPFC, within 10 days after the
date of the notification of intention to
deny or revoke. A Certificate subject to
revocation under this paragraph remains
valid until the Director, NPFC, issues a
written decision revoking the
Certificate.
(g) An applicant or certificant whose
Certificate has been denied under
paragraph (a) of this section or revoked
under paragraph (b) or (c) of this section

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Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations

may request the Director, NPFC, to
reconsider the denial or revocation. The
certificant must submit a request for
reconsideration, in writing, to the
Director, NPFC, within 20 days of the
date of the denial or revocation. The
certificant must state the reasons for
requesting reconsideration. The
Director, NPFC, will generally issue a
written decision on the request within
30 days of receipt, provided that, if the
Director, NPFC, does not issue a
decision within 30 days, the request for
reconsideration will be deemed to have
been denied, and the denial or
revocation will be deemed to have been
affirmed. Unless the Director, NPFC,
issues a decision reversing the
revocation, a revoked Certificate
remains invalid. A decision by the
Director, NPFC, affirming a denial or
revocation, is final agency action.

mstockstill on PROD1PC66 with RULES

§ 138.130

Fees.

(a) The Director, NPFC, will not issue
or renew a Certificate until the fees set
forth in paragraphs (c) and (d) of this
section have been paid.
(b) For those using E-COFR, credit
card payment is required. Otherwise,
fees must be paid in United States
currency by check, draft, or postal
money order made payable to the ‘‘U.S.
Coast Guard’’.
(c) An applicant who submits an
Application under this subpart must
pay a non-refundable Application fee of
$200 for each Application (i.e.,
individual Certificate, Fleet Certificate,
or Master Certificate), except as follows:
(1) An Application for an additional
(i.e., supplemental) individual
Certificate,
(2) A request to amend or renew an
existing Certificate, or
(3) An Application submitted within
90 days following a revocation or other
invalidation of a Certificate.
(d) In addition to the Application fee
of $200, an applicant must pay a
certification fee of $100 for each vessel
for which a Certificate is requested. An
applicant must pay the $100
certification fee for each vessel listed in,
or later added to, an Application for an
individual Certificate(s). An applicant
must pay the $100 certification fee to
renew or to reissue a Certificate for any
reason, including, but not limited to, a
vessel or operator name change.
(e) A certification fee is refunded,
upon receipt of a written request, if the
Application is denied or withdrawn
before issuance of the Certificate.
Overpayments of Application and
certification fees are refunded, on
request, only if the refund is for $100 or
more. However, any overpayments not
refunded will be credited, for a period

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of 3 years from the date of receipt of the
monies by the Coast Guard, for the
applicant’s possible future use or
transfer to another applicant under this
subpart.
§ 138.140

Enforcement.

(a) Any person who fails to comply
with this subpart with respect to
evidence of financial responsibility
under Section 1016 of OPA 90 (33
U.S.C. 2716) is subject to a civil penalty
under Section 4303(a) of OPA 90 (33
U.S.C. 2716a(a)). In addition, under
Section 4303(b) of OPA 90 (33 U.S.C.
2716a(b)), the Attorney General may
secure such relief as may be necessary
to compel compliance with the OPA 90
requirements of this subpart, including
termination of operations. Further, any
person who fails to comply with this
subpart with respect to evidence of
financial responsibility under Section
108(a) of CERCLA (42 U.S.C. 9608(a)), is
subject to a Class I administrative civil
penalty, a Class II administrative civil
penalty or a judicial penalty under
Section 109 of CERCLA (42 U.S.C.
9609).
(b) The Secretary of the Department in
which the U.S. Coast Guard is operating
will withhold or revoke the clearance
required by 46 U.S.C. 60105 to any
vessel subject to this subpart that has
not provided the evidence of financial
responsibility required by this subpart.
(c) The Coast Guard may deny entry
to any port or place in the United States
or the navigable waters of the United
States, and may detain at a port or place
in the United States in which it is
located, any vessel subject to this
subpart, which has not provided the
evidence of financial responsibility
required by this subpart.
(d) Any vessel subject to this subpart
which is found operating in the
navigable waters without having been
issued a Certificate or maintained the
necessary evidence of financial
responsibility as required by this
subpart is subject to seizure by, and
forfeiture to, the United States.
(e) Knowingly and willfully using an
altered copy of a Certificate, or using a
copy of a revoked, expired or voided
Certificate for anything other than
recordkeeping purposes, is prohibited. If
a Certificate is revoked, has expired or
is rendered void for any reason, the
certificant must cease using all copies of
the Certificate for anything other than
the operator’s own historical
recordkeeping purposes.
§ 138.150

Service of process.

(a) When executing the forms required
by this subpart, each applicant,
certificant and guarantor must designate

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thereon a person located in the United
States as its agent for service of process
for purposes of this subpart and for
receipt of notices of responsible party
designations and presentations of claims
under the Acts (collectively referred to
herein as ‘‘service of process’’). Each
designated agent must acknowledge the
agency designation in writing unless the
agent has already furnished the Director,
NPFC, with a master (i.e., blanket)
agency acknowledgment showing that
the agent has agreed in advance to act
as the United States agent for service of
process for the applicant, certificant, or
guarantor in question.
(b) If any applicant, certificant, or
guarantor desires, for any reason, to
change any designated agent, the
applicant, certificant, or guarantor must
notify the Director, NPFC, of the change.
If a master agency acknowledgment for
the new agent is not on file with NPFC,
the applicant, certificant, or guarantor
must furnish to the Director, NPFC, all
the relevant information, including the
new agent’s acknowledgment, required
in accordance with paragraph (a) of this
section. In the event of death, disability,
unavailability, or similar event of a
designated agent, the applicant,
certificant, or guarantor must designate
another agent in accordance with
paragraph (a) of this section within 10
days of knowledge of any such event.
The applicant, certificant, or guarantor
must submit the new designation to the
Director, NPFC. The Director, NPFC,
may deny or revoke a Certificate if an
applicant, certificant, or guarantor fails
to designate and maintain an agent for
service of process.
(c) If a designated agent cannot be
served because of death, disability,
unavailability, or similar event, and
another agent has not been designated
under this section, then service of
process on the Director, NPFC, will
constitute valid service of process.
Service of process on the Director,
NPFC, will not be effective unless the
server—
(1) Sends the applicant, certificant, or
guarantor, as applicable (by registered
mail, at the last known address on file
with the Director, NPFC), a copy of each
document served on the Director, NPFC;
and
(2) Attests to this registered mailing,
at the time process is served upon the
Director, NPFC, indicating that the
intent of the mailing is to effect service
of process on the applicant, certificant,
or guarantor and that service on the
designated agent is not possible, stating
the reason why.

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Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations
Subpart B—OPA 90 Limits of Liability
(Vessels and Deepwater Ports)
§ 138.200

Scope.

This subpart sets forth the limits of
liability for vessels and deepwater ports
under section 1004 of the Oil Pollution
Act of 1990, as amended (33 U.S.C.
2704) (OPA 90), including adjustments
pursuant to section 1004(d) of OPA 90
(33 U.S.C. 2704(d)).

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§ 138.210

(ii) [Reserved].
(c) [Reserved].
Dated: September 3, 2008.
Craig A. Bennett,
Director, National Pollution Funds Center,
United States Coast Guard.
[FR Doc. E8–21554 Filed 9–16–08; 8:45 am]
BILLING CODE 4910–15–P

DEPARTMENT OF AGRICULTURE

Applicability.

This subpart applies to you if you are
a responsible party for a vessel as
defined under Section 1001(37) of OPA
90 (33 U.S.C. 2701(37)) or a deepwater
port as defined under Section 1001(6) of
OPA 90 (33 U.S.C. 2701(6)), unless your
OPA 90 liability is unlimited under
Section 1004(c) of OPA 90 (33 U.S.C.
2704(c)).

Forest Service

§ 138.220

AGENCY:

Limits of liability.

(a) Vessels. (1) The OPA 90 limits of
liability for vessels are—
(i) For a tank vessel greater than 3,000
gross tons with a single hull, including
a single-hull vessel fitted with double
sides only or a double bottom only, the
greater of $3,000 per gross ton or
$22,000,000;
(ii) For a tank vessel greater than
3,000 gross tons with a double hull, the
greater of $1,900 per gross ton or
$16,000,000.
(iii) For a tank vessel less than or
equal to 3,000 gross tons with a single
hull, including a single-hull vessel fitted
with double sides only or a double
bottom only, the greater of $3,000 per
gross ton or $6,000,000.
(iv) For a tank vessel less than or
equal to 3,000 gross tons with a double
hull, the greater of $1,900 per gross ton
or $4,000,000.
(v) For any other vessel, the greater of
$950 per gross ton or $800,000.
(2) As used in this paragraph (a), the
term double hull has the meaning set
forth in 33 CFR part 157 and the term
single hull means any hull other than a
double hull.
(b) Deepwater ports. The OPA 90
limits of liability for deepwater ports
are—
(1) Generally. For any deepwater port
other than a deepwater port with a limit
of liability established by regulation
under Section 1004(d)(2) of OPA 90 (33
U.S.C. 2704(d)(2)) and set forth in
paragraph (b)(2) of this section,
$350,000,000; and
(2) For deepwater ports with limits of
liability established by regulation under
Section 1004(d)(2) of OPA 90 (33 U.S.C.
2704(d)(2)):
(i) For the Louisiana Offshore Oil Port
(LOOP), $62,000,000;

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36 CFR Parts 215 and 218
RIN 0596–AC15

Predecisional Administrative Review
Process for Hazardous Fuel Reduction
Projects Authorized Under the Healthy
Forests Restoration Act of 2003
ACTION:

Forest Service, USDA.
Final rule.

SUMMARY: This document makes final
the interim rule that was published on
January 9, 2004, with minor changes to
both parts 215 and 218. This rule
establishes a process by which the
public may file objections to seek
administrative review of proposed
hazardous fuel reduction projects
authorized by the Healthy Forests
Restoration Act of 2003 (HFRA), Public
Law 108–148. Section 105 of the act
directs the Secretary of Agriculture to
publish final regulations following
public comment on the interim final
regulations. This final rule refines the
HFRA objection procedures based on
public comment and agency experience
applying the interim final rule. These
changes add clarity to the procedural
direction, describe authorized
hazardous fuel reduction projects not
subject to objection, clarify notification
requirements, clarify the eligibility
criteria for who may file an objection,
provide for the incorporation of certain
documents into objections by reference,
and clarify how timeliness of objection
filing will be determined.
DATE: Effective Date: This rule is
effective October 17, 2008.
ADDRESSES: The Forest Service objection
procedures for proposed hazardous fuel
reduction projects authorized by the
HFRA are set out in 36 CFR part 218,
which is available electronically on the
World Wide Web at http://
www.fs.fed.us/objections/
objections_related.php#app_work .
Single paper copies are available by
contacting Kevin Lawrence, Forest
Service-USDA, Ecosystem Management
Coordination Staff (Mail Stop 1104),
1400 Independence Avenue, SW.,

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53705

Washington, DC 20250–1104.
Additional information can be found at
http://www.fs.fed.us/emc/applit/.
FOR FURTHER INFORMATION CONTACT:
Assistant Director for Appeals and
Litigation Deborah Beighley at (202)
205–1277 or Appeal Specialist Kevin
Lawrence at (202) 205–2613.
Individuals who use telecommunication
devices for the deaf may call the Federal
Information Relay Service at 1–800–
877–8339 between 8 a.m. and 8 p.m.
Eastern Standard Time, Monday
through Friday.
SUPPLEMENTARY INFORMATION: On
December 3, 2003, President George W.
Bush signed into law the Healthy
Forests Restoration Act of 2003 (HFRA)
to reduce the threat of destructive
wildfires while upholding
environmental standards and
encouraging early public input during
planning processes.
One of the provisions of the Act
(section 105) required the Secretary of
Agriculture to issue an interim final rule
to establish a predecisional
administrative review process for
hazardous fuel reduction projects
authorized by the HFRA and to
promulgate final regulations after
providing for public comments.
On January 9, 2004, the Forest Service
published an interim final rule and
request for comments (69 FR 1529). The
interim final rule established a
predecisional administrative review
process at 36 CFR part 218, subpart A,
and 36 CFR part 215 was amended to
exempt hazardous fuel reduction
projects authorized by the HFRA from
the notice, comment, and appeal
procedures set out at part 215.
In giving direct notice of the interim
final rule, the Department also set a 90day comment period and invited
comments from individuals, industry,
national organizations, and Federal
agencies. A total of 67 comment letters
were received from individuals,
representatives of State government
agencies, environmental groups,
professional organizations, and
industry. Each comment received
consideration in the development of the
final rule.
The Department has also used the
intervening time since the comment
period on the interim final rule to gain
additional experience with its
implementation. Forest Service records
indicate approximately 80 decisions
have been issued for fuels reduction
projects under HFRA Title I authority
since the beginning of 2005. The
Agency’s application of the predecisional objection process to these
projects has provided valuable insight to

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