PART 138—EVIDENCE OF FINANCIAL RESPONSIBILITY FOR WATER POLLUTION (VESSELS) AND OPA 90 LIMITS OF LIABILITY (VESSELS, DEEPWATER PORTS AND ONSHORE FACILITIES) Authority: 6 U.S.C. 552(d); 33 U.S.C. 2704, 2716, 2716a; 42 U.S.C. 9608, 9609; E.O. 12580, Sec. 7(b), 3 CFR, 1987 Comp., p. 193; E.O. 12777, Secs. 4 and 5, 3 CFR, 1991 Comp., p. 351, as amended by E.O. 13286, Sec. 89, 3 CFR, 2004 Comp., p. 166, and by E.O. 13638, Sec. 1, 3 CFR, 2014 Comp., p.227; Department of Homeland Security Delegation Nos. 00170.1, Revision 01.2 and 5110, Revision 01. Section 138.40 also issued under the authority of 46 U.S.C. 2103 and 14302. Source: USCG-2005-21780, 73 FR 53697, Sept. 17, 2008, unless otherwise noted. Subpart A—Evidence of Financial Responsibility for Water Pollution (Vessels) Source: 86 FR 68139, Dec. 1, 2021, unless otherwise noted. § 138.10 Scope and purpose. (a) Scope. (1) The requirements and procedures each COFR Operator (as defined in § 138.30(b)) must use to establish and maintain the evidence of financial responsibility required by the OPA 90 and CERCLA (both defined in § 138.30), and to obtain Certificates of Financial Responsibility (COFR); (2) The standards and procedures the Coast Guard uses to determine the acceptability of guarantors; (3) The procedures guarantors must use to submit evidence of financial responsibility on behalf of the responsible parties for vessels to which this subpart applies; (4) The requirements for designating and maintaining U.S. agents for service of process; (5) The requirements for reporting changes affecting compliance with this subpart; and (6) The enforcement actions that may result from non-compliance with this subpart or OPA 90, CERCLA, or both, referenced in paragraph (a)(1) of this section. (b) Purpose. (1) Under OPA 90 in the event of a discharge, or substantial threat of a discharge, of oil; and (2) In the case of vessels greater than 300 gross tons, under CERCLA in the event of a release, or threatened release, of a hazardous substance. § 138.20 Applicability. (a) Applicability generally. (1) To the COFR Operator of— (i) Any vessel over 300 gross tons (except a vessel listed in paragraph (d)(1) or (2) of this section) using the navigable waters of the United States, or any port or other place subject to the jurisdiction of the United States, including any such vessel using a deepwater port or other offshore facility subject to the jurisdiction of the United States; (ii) Any vessel of any size (except a vessel listed in paragraph (d)(1) or (3) of this section) using the waters of the Exclusive Economic Zone to transship or lighter oil (whether delivering or receiving) destined for a place subject to the jurisdiction of the United States; and (iii) Any tank vessel over 100 gross tons (except a vessel listed in paragraph (d)(1) or (3) of this section) using the navigable waters of the United States, or any port or other place subject to the jurisdiction of the United States, including any such tank vessel using a deepwater port or other offshore facility subject to the jurisdiction of the United States; (2) To a guarantor providing evidence of financial responsibility under this subpart on behalf of one or more of a vessel's responsible parties; (3) To responsible parties other than the COFR Operator designated to represent the responsible parties for purposes of this subpart; and (4) To any person serving as a U.S. agent for service of process under this subpart. (b) How to apply this part to mobile offshore drilling units. (1) A tank vessel when it is being used as an offshore facility; and (2) A vessel other than a tank vessel when it is not being used as an offshore facility. (c) How to apply CERCLA evidence of financial responsibility to self-propelled vessels. (d) Exceptions. (2) Paragraph (a)(1)(i) of this section does not apply to any non-self-propelled barge that does not carry oil as cargo or fuel and does not carry hazardous substances as cargo. (3) Paragraphs (a)(1)(ii) and (iii) of this section do not apply to: any offshore supply vessel; any fishing vessel or fish tender vessel of 750 gross tons or less that transfers fuel without charge to a fishing vessel owned by the same person; any towing or pushing vessel (tug) simply because it has in its custody a tank barge; or any tank vessel that only carries, or is adapted to carry, non-liquid hazardous material in bulk as cargo or cargo residue. § 138.30 Definitions. (a) As used in this subpart, the following terms have the meanings set forth in— (1) OPA 90 (specifically in 33 U.S.C. 2701): Claim, claimant, damages, deepwater port, discharge, Exclusive Economic Zone, facility, incident, liable liability, mobile offshore drilling unit, navigable waters, offshore facility, oil, owner or operator, person, remove, removal, removal costs, responsible party, tank vessel, United States, vessel; (2) CERCLA (42 U.S.C. 9601): Claim, claimant, damages, facility, hazardous substance, liable liability, navigable waters, offshore facility, owner or operator, person, remove, removal, United States, vessel. (3) 46 CFR 69.9: Convention Measurement System, foreign-flag vessel, gross tonnage ITC (GT ITC) 1 gross register tonnage (GRT), tonnage, U.S.-flag vessel. 1 (b) As used in this subpart— Applicable amount Application Cargo CERCLA et seq. COFR https://npfc.uscg.mil/cofr/default.aspx. COFR Operator (i) If a vessel has one owner and is operated by that owner, or the owner controls and is responsible for the vessel's operation, the owner is the COFR Operator. In all other cases the person who operates, or controls and is principally responsible for the operation of, the vessel (for example, the demise charterer) is the COFR Operator. (ii) A person who is responsible, or who agrees by contract to become responsible, for a vessel in the capacity of a builder, repairer, or scrapper, or for the purpose of holding the vessel out for sale or lease, is the COFR Operator. A person who takes possession of, or responsibility for, a newly built, modified, or repaired vessel from a builder or repairer, or who purchases and operates or becomes a demise charterer of a vessel held out for sale or lease, is the COFR Operator. (iii) A time or voyage charterer who does not assume responsibility for the operation of a vessel is not a COFR Operator for purposes of this subpart. (iv) The designation of an operator to act as the COFR Operator on behalf of a vessel's responsible parties for purposes of this subpart does not limit who may be determined to be an operator under OPA 90, CERCLA, or both, in the event of an incident or a release. Day days Director eCOFR https://npfc.uscg.mil/cofr/default.aspx, Evidence of financial responsibility Financial guarantor Fish tender vessel fishing vessel Fleet Certificate Fuel Guarantor Hazardous material Individual Certificate Insurance guarantor insurance guarantor Master Certificate Net worth NPFC Offshore supply vessel OPA 90 et seq. Public vessel Release, Responsible party, Self-insurer Total applicable amount Working capital § 138.40 General requirements. (a) Requirement to establish and maintain evidence of financial responsibility. (1) Established as of the date they become a responsible party; and (2) Continuously maintained for so long as they remain a responsible party. (b) Requirement to have a COFR and report changes. § 138.50 How to apply vessel gross tonnages. (a) Purpose. (1) Determine whether a vessel exceeds the 100 or 300 gross ton threshold under § 138.20 and OPA 90, CERCLA, or both; (2) Calculate the OPA 90 and CERCLA applicable amounts of financial responsibility required, as provided in § 138.100; and (3) Determine the OPA 90 limit of liability under subpart B of this part in the event of an oil pollution incident, and the CERCLA limit of liability under 42 U.S.C. 9607 in the event of a hazardous substance release. (b) Both GT ITC and GRT assigned. (c) GT ITC or GRT assigned. (d) High or low GRT assigned. (e) Summary. Table 1 to § 138.50( e Category Assigned tonnage To apply the tonnage To determine applicable amounts under § 138.100 and limits of liability Vessels Assigned Both GRT GT ITC. Vessels Assigned GT ITC only GT ITC GT ITC. GRT only GRT GRT. (f) Certified gross tonnage governs. (g) Requirement to present tonnage certifying document(s). § 138.60 Forms and submissions; ensuring submission timeliness. (a) Where to obtain forms. https://npfc.uscg.mil/cofr/default.aspx, (b) Where to obtain information. (c) How to present Applications and other required submissions. (i) Electronically, using the eCOFR process (located at https://npfc.uscg.mil/cofr/default.aspx (ii) By email, sent to such email address as the Director may specify, attaching legible electronic images scanned in a format acceptable to the Director; (iii) By fax, sent to 202-795-6123 with a cover sheet specifying the total number of pages, the sender's telephone number, and referencing NPFC telephone number 202-795-6130; or (iv) By mail, addressed to— Director, National Pollution Funds Center, ATTN: VESSEL CERTIFICATION, U.S. Coast Guard Stop 7605, 2703 Martin Luther King Jr. Ave. SE,
Washington, DC 20593-7605. (2) Submissions may not be hand delivered to the NPFC. (3) Do not present submissions by more than one method. (d) Required contents of submissions. (1) Set forth, in full, the correct legal name of the COFR Operator to whom the COFR is to be, or has been, issued; (2) Be in English, and (3) Express all monetary terms in United States dollars. (e) Ensuring the timeliness of submissions; requesting deadline exceptions. (2) Ensuring the timeliness of the submissions is the sole responsibility of the person making the submission. (3) The Director may, in the Director's sole discretion, grant an exception to a deadline specified in this subpart for good cause shown. (f) Public access to information. § 138.70 Issuance and renewal of COFRs. (a) Types of COFRs. (b) Requirements before issuance and renewal of COFRs. (c) COFRs are issued only to designated COFR Operators. (d) Form of issuance. https://npfc.uscg.mil/cofr/default.aspx (e) Information included in COFRs. (1) The name of the COFR Operator; (2) The date of COFR expiration; (3) The COFR number; (4) For an Individual Certificate, the name of the covered vessel, and the vessel's gross tonnage information, including the measurement system(s) used; (5) For a Fleet Certificate, the gross tons of the largest unmanned, non-self-propelled, non-tank barge within the fleet, including the measurement systems(s) used; and (6) For a Master Certificate, the gross tons of the largest tank vessel and largest vessel other than a tank vessel eligible for coverage by the Master Certificate, including the measurement systems(s) used. § 138.80 Applying for COFRs. (a) How to apply for a COFR. (1) Submit, or cause to be submitted, to the Director, by one of the submission methods provided in § 138.60(c): (i) An Application; (A) For an Individual Certificate, list the name of the covered vessel, and the vessel's gross tonnage information, including the measurement system(s) used on the application; (B) For a Fleet Certificate, instead of listing each individual barge, mark the box with the following statement: “This is an Application for a Fleet Certificate. The largest unmanned, non-self-propelled, non-tank barge to be covered by this Application is [INSERT APPLICABLE GROSS TONS] GT ITC and [INSERT GROSS TONNAGE] GRT”; and (C) For a Master Certificate, instead of listing each individual vessel, mark the box with the following statement: “This is an Application for a Master Certificate. The largest tank vessel to be covered by this Application is [INSERT APPLICABLE GROSS TONS] GT ITC and [INSERT APPLICABLE GROSS TONS] GRT, as applicable. The largest vessel other than a tank vessel to be covered by this Application is [INSERT APPLICABLE GROSS TONS] GT ITC and [INSERT APPLICABLE GROSS TONS] GRT, as applicable.” (ii) The evidence of financial responsibility using one of the guaranty methods provided in § 138.110; (A) For a Fleet Certificate, the evidence of financial responsibility must be in the total applicable amount, determined as provided in § 138.100, for the largest unmanned, non-self-propelled, non-tank barge to be covered. (B) For a Master Certificate, the evidence of financial responsibility must be in the total applicable amount determined as provided in § 138.100 for the largest tank vessel and largest non-tank vessel to be covered by the Master Certificate. (iii) The agent for service of process designations required by § 138.130; and (iv) All other supporting documentation required by this subpart. (A) At the time of Application for a Master Certificate, the COFR Operator must submit a report to the Director, indicating: the name; previous name, if applicable; type; gross tonnage and measurement system(s) used, for each vessel covered by the Master Certificate, indicating which vessels, if any, are tank vessels. If a vessel has both a GT ITC and GRT tonnage, specify both gross tonnages. (B) Six months after receiving a Master Certificate, and every 6 months thereafter, each COFR Operator must submit to the Director, an updated report, separately listing the vessels no longer covered by that Master Certificate. If a vessel has both a GT ITC and GRT, both gross tonnages must be specified. If a vessel has been transferred to another responsible party and the COFR Operator to whom the Master Certificate was issued ceases to be the vessel's operator, the COFR Operator must report the date and place of the transfer, and the name and contact information of the responsible party to whom the vessel was transferred. If the vessels covered by the Master Certificate have not changed from the previous report, the COFR Operator may submit an updated report that indicates no change from previous report. (2) Pay, or cause to be paid, all fees required by § 138.120. (b) Application deadline. (c) Where to obtain Application forms. https://npfc.uscg.mil/cofr/default.aspx (d) Requirement to verify, or sign and date, the Application. (2) The Application must include the title of the person signing it. (3) If the person signing the Application is acting under a Power of Attorney, they must include a copy of the Power of Attorney with the Application. (e) Requirement to update Applications. (f) Amending Fleet and Master Certificates. (1) Submit a new or amended Application, or a written request to supplement the Application, to reflect the new maximum gross tonnages on the COFR; (2) Unless the COFR Operator qualifies as a self-insurer at the higher total applicable amount, submit, or cause to be submitted, evidence of financial responsibility using one of the guaranty methods provided in § 138.110 to the Director, demonstrating increased coverage based on the new maximum gross tonnage; and (3) Pay a new certification fee, as required by § 138.120. § 138.90 Renewing COFRs. (a) The COFR Operator must submit a request for COFR renewal to the NPFC at least 21 days, but no earlier than 90 days, before the expiration date of the current COFR. (b) The COFR Operator may seek an exception to the 21-day request for COFR renewal submission deadline in paragraph (a) of this section only as provided in § 138.60(e)(3). (c) The COFR Operator must identify in the request for COFR renewal all changes to the information contained in the initial Application, including the gross ton measurement system(s) used (if not previously provided), the evidence of financial responsibility, and all other supporting documentation previously submitted to the Director, as provided in § 138.150. § 138.100 How to calculate a total applicable amount. The total applicable amount is the sum of the OPA 90 applicable amount determined under paragraph (a) of this section plus the CERCLA applicable amount determined under paragraph (b) of this section. (a) OPA 90 applicable amount. (b) CERCLA applicable amount. (1) For a vessel over 300 gross tons carrying a hazardous substance as cargo, and for any vessel covered under § 138.110(c)(3) or (d)(2)(ii) (calculation of CERCLA applicable amounts for financial guarantors and self-insurers), the greater of $5,000,000 or $300 per gross ton. (2) For any other vessel over 300 gross tons, the greater of $500,000 or $300 per gross ton. (c) Amended applicable amounts. (d) OPA 90 and CERCLA applicable amounts and limits of liability. (1) OPA 90 is required to be made available by a guarantor for the costs and damages related to an incident where there is not also a release; and (2) CERCLA is required to be made available by a guarantor for the costs and damages related to a release where there is not also an incident. A guarantor (or a self-insurer for whom the exceptions to a limitations of liability are not applicable), therefore, is not required to apply the entire amount of financial responsibility to an incident involving oil alone or a release involving a hazardous substance alone. § 138.110 How to establish and maintain evidence of financial responsibility. (a) General requirement; guaranty effective date and termination date. (1) If submitted on behalf of the COFR Operator, the guarantor must provide evidence of financial responsibility to the Director. (2) The effective and termination dates are as follows: Table 1 to § 138.110( a Type of certificate Effective date Termination date Individual Guaranty form submission date 30 days after the date the Director and the COFR Operator receive written notice from the guarantor that the guarantor intends to cancel the guaranty for that vessel. Master Guaranty form submission date or date COFR Operator becomes a Responsible Party for the vessel (3) Termination provisions: (i) The guarantor must specify the reason for terminating the guaranty in the notice required by this paragraph, if known. (ii) Termination of the guaranty as to any covered vessel will not affect the liability of the guarantor in connection with an incident or release commencing or occurring prior to the effective date of the guaranty termination. (4) If, at any time, the information contained in the evidence of financial responsibility submitted under this section changes, or there is a material change in a guarantor or self-insurer's financial position, the guarantor or COFR Operator or self-insurer (as applicable), must report the change to the Director, as provided in § 138.150. (b) Insurance guaranty method. (1) Each form must be executed by no more than four COFR insurance guarantors accepted by the Director. A lead underwriter is considered one of the COFR insurance guarantors. (2) The process for establishing and maintaining the acceptability of a COFR insurance guarantor is as follows: (i) The COFR insurance guarantor must request an initial determination by the Director of the COFR insurance guarantor's acceptability to serve as a COFR insurance guarantor under this subpart, at least 90 days before the date a COFR is required, by submitting information describing the COFR insurance guarantor's structure, business practices, history, and financial strength, and such other information as may be requested by the Director. (ii) The Director reviews the continued acceptability of COFR insurance guarantors annually. Each COFR insurance guarantor must submit updates to the initial request submitted under paragraph (b)(2)(i) of this section, annually, within 90 days after the close of the COFR insurance guarantor's fiscal year, describing any material changes to the COFR insurance guarantor's legal status, structure, business practices, history, and financial strength, since the previous year's submission, and providing such other information as may be requested by the Director. (c) Financial guaranty method. (1) Each form must be executed by no more than four financial guarantors accepted by the Director, at least one of which must be a parent or affiliate of the COFR Operator. ( See (2) The process for establishing and maintaining the acceptability of a financial guarantor is as follows: (i) The financial guarantor must comply with the self-insurance provisions in paragraph (d) of this section, and the periodic reporting requirements in paragraphs (e)(1) through (4) of this section. (ii) The financial guarantor must also demonstrate that it maintains net worth and working capital, each in amounts equal to or greater than— (A) The aggregate total applicable amounts, calculated for each COFR Operator vessel for which the financial guaranty is being provided, based on each such COFR Operator's vessel with the greatest total applicable amount, plus— (B) The total applicable amount required to be demonstrated by a self-insurer under this subpart if the financial guarantor is also acting as a self-insurer. (3) In the case of a vessel greater than 300 gross tons, calculate the CERCLA applicable amount under § 138.100(b)(1) based on a vessel carrying hazardous substances as cargo. (d) Self-insurance method. (1) Submit to the Director the financial statements specified in paragraphs (e)(1) through (4) of this section for the fiscal year preceding the date the COFR Operator signs the Application or request for COFR renewal. (2) Demonstrate that the COFR Operator maintains, in the United States, working capital and net worth, each in amounts equal to or greater than the total applicable amount, calculated as follows: (i) If the self-insurer has multiple vessels, calculate the total applicable amount based on the vessel with the greatest total applicable amount. (ii) In the case of a vessel greater than 300 gross tons, calculate the CERCLA applicable amount under § 138.100(b)(1) based on a vessel carrying hazardous substances as cargo. (e) Reporting requirements for self-insurers and financial guarantors. (i) Submit the self-insurer or financial guarantor's annual, current, and audited non-consolidated financial statements prepared in accordance with Generally Accepted Accounting Principles, and audited by an independent Certified Public Accountant in accordance with Generally Accepted Auditing Standards. (ii) Accompany the financial statements with a declaration from the self-insurer or financial guarantor's chief financial officer, treasurer, or equivalent official, certifying the amount of the self-insurer or financial guarantor's current assets, and the amount of the self-insurer or financial guarantor's total assets included in the accompanying balance sheet, which are located in the United States. (iii) If the financial statements cannot be submitted in non-consolidated form, submit a consolidated statement accompanied by an additional declaration prepared by the same Certified Public Accountant— (A) Verifying the amount by which the total assets located in the United States exceed the self-insurer or financial guarantor's total (worldwide) liabilities, and the self-insurer or financial guarantor's current assets located in the United States exceed the self-insurer or financial guarantor's total (worldwide) current liabilities; (B) Specifically naming the self-insurer or financial guarantor; (C) Confirming that the amounts so verified relate only to the self-insurer or financial guarantor, apart from any parent or other affiliated entity; and (D) Identifying the consolidated financial statement to which it applies. (2) When the self-insurer or financial guarantor's demonstrated net worth is not at least ten times the cumulative total applicable amounts, their chief financial officer, treasurer, or equivalent official must submit to the Director with the Application and semi-annually thereafter, within the deadline specified in paragraph (e)(4) of this section, an affidavit stating that neither their working capital nor net worth fell during the first 6 months of the self-insurer or financial guarantor's current fiscal year, below the cumulative total applicable amounts. (3) All self-insurers and financial guarantors must— (i) Submit, upon the Director's request, additional financial information within the time specified; and (ii) Notify the Director in writing within 5 days following the date the self-insurer or financial guarantor knows, or has reason to know, that its working capital or net worth has fallen below the total applicable amounts. (4) All required annual financial statements and declarations must be submitted to the Director within 90 days after the close of the self-insurer or financial guarantor's fiscal year. All required semi-annual financial statements and declarations must be submitted to the Director within 30 days after the close of the applicable 6-month period. The Director will grant an extension of the time limits for submissions under this paragraph only as provided in § 138.60(e). (5) A failure by a self-insurer or financial guarantor to timely submit to the Director any statement, data, notification, or other submission required may result in the Director denying or revoking the COFR, and may prompt enforcement action as provided under § 138.170. (6) The Director may waive the working capital requirement for any self-insurer or financial guarantor that— (i) Is a regulated public utility, a municipal or higher-level governmental entity, or an entity operating solely as a charitable, non-profit organization qualifying under the Internal Revenue Code (26 U.S.C. 501(c)), provided that the self-insurer or financial guarantor demonstrates in writing that the waiver would benefit a local public interest; or (ii) Demonstrates in writing that working capital is not a significant factor in the self-insurer or financial guarantor's financial condition, in which case the self-insurer or financial guarantor's net worth in relation to the required cumulative total applicable amounts, and a history of stable operations, are the major elements considered by the Director. (f) Other guaranty methods for establishing evidence of financial responsibility. (i) The COFR Operator must submit the request to the Director in writing, at least 90 days prior to the date the COFR is required. (ii) The request must describe in detail: The method proposed; the reasons why the COFR Operator does not wish to (or is unable to) use one of the methods described in paragraphs (b) through (e) of this section; and how the proposed guaranty method assures that the vessel's responsible parties have the financial ability to meet their potential liabilities under OPA 90 and CERCLA in the event of an incident or a release. (iii) Each COFR Operator making a request under this paragraph must provide the Director a proposed guaranty form that includes all the elements described in paragraphs (g) and (h) of this section. (2) The Director will not accept a self-insurance method other than the one described in paragraph (d) of this section. The Director also will not accept a guaranty method under this paragraph that merely deletes or alters a requirement or provision of one of the guaranty methods described in paragraphs (b) through (e) of this section (for example, one that alters the termination clause of the Insurance Guaranty). (3) A Director's decision to accept an alternative guaranty method of establishing evidence of financial responsibility under this paragraph is final agency action. (g) Additional rules regarding multiple guarantors. (1) If a guarantor's percentage of vertical participation is specified on the relevant guaranty form, the guarantor is subject to direct action and is liable for the payment of costs and damages under OPA 90 or CERCLA, as applicable, only in accordance with the percentage of vertical participation so specified for that guarantor. (2) Participation in the form of layering (tiers, one in excess of another) is not permitted. Only vertical participation on a percentage basis and participation with no specified percentage allocation is acceptable. (3) If no percentage of vertical participation is specified for a guarantor on the relevant guaranty form, the guarantor's liability is joint and several for the total of the unspecified portion. (4) The participating guarantors must designate a lead guarantor having authority to bind all of the participating guarantors for actions required of guarantors under OPA 90 or CERCLA and this subpart, including but not limited to reporting changes in the evidence of financial responsibility as provided in § 138.150(d), receipt of source designations, advertisement of source designations and the responsible party's claims procedures, and receipt and settlement of claims. (h) Direct action. (i) The incident, release, or both, were caused by the willful misconduct of a responsible party for whom the guaranty was provided; (ii) All rights and defenses, which would be available to the responsible party under OPA 90, CERCLA, or both, as applicable; (iii) A defense that the amount of the claim, or all claims asserted with respect to the same incident or release, whether asserted in court or in any other proceeding, exceeds the amount of the guaranty, except when the guaranty is based on the gross tonnage of the vessel (instead of the statutory minimums) and the guarantor knew or should have known that the applicable tonnage certificate was incorrect (see § 138.50(f)); and (iv) The claim is not one made under OPA 90, CERCLA, or both. (2) Except when the guaranty is based on the gross tonnage of the vessel (instead of the statutory minimums) and the guarantor knew or should have known that the evidence of financial responsibility or applicable tonnage certificate is incorrect (see § 138.50(f)), a guarantor who provides evidence of financial responsibility under this subpart will be liable, with respect to any one incident or release, or both, as applicable, only for the amount of costs and damages specified in the evidence of financial responsibility. (3) A guarantor will not be considered to have consented to direct action under any law other than OPA 90 or CERCLA, or to unlimited liability under any law or in any venue, solely because the guarantor has provided evidence of financial responsibility under this subpart. (4) In the event of any finding that the liability of a guarantor under OPA 90 or CERCLA exceeds the amount of the guaranty provided under this subpart, that guaranty is considered null and void with respect to that excess. (i) Process upon disapproval of guarantor. (1) If the COFR Operator establishes, or causes to be established, new acceptable evidence of financial responsibility within the period specified by the Director in the notice, the Application if otherwise complete will be approved or the COFR will remain in effect, and the COFR Operator will not have to pay a new Application fee or certification fee. (2) If the COFR Operator fails to establish, or cause to be established, new acceptable evidence of financial responsibility within the period specified by the Director in the notice, the Director may deny or revoke the COFR and, if revoked, the COFR Operator will have to apply for a new COFR and pay a new certification fee. The COFR Operator's failure to establish, or cause to be established, new acceptable evidence of financial responsibility within the period specified by the Director may also result in enforcement as provided under § 138.170. § 138.120 Fees. (a) Fee payment methods. (1) All fees required by this section must be paid in United States dollars. (2) For COFR Operators using eCOFR as provided under § 138.60(c)(1)(i), credit card payment is required. (3) For COFR Operators submitting Applications and requests for COFR renewal under § 138.60(c)(1)(ii) through (iv) (email, fax, and mail submissions), the fees must be paid by a check, cashier's check, draft, or postal money order, made payable to the “U.S. Coast Guard”. Cash payments will not be accepted. (i) For Applications and requests for COFR renewal submitted under § 138.60(c)(1)(ii) and (iii) (email and fax submissions, respectively), all fee payments must be received by the Director no later than 21 days following submission of the Application or request for COFR renewal. (ii) For Applications and requests for COFR renewal submitted under § 138.60(c)(1)(iv) (mail submissions), all fee payments must be enclosed with the Application or request for COFR renewal. (4) Any failure to timely pay the fees required by this section may result in COFR denial or revocation, debt collection (see 6 CFR part 11, 44 CFR part 11, and 31 CFR parts 285, and 900 through 904), and such other enforcement under § 138.170 as may be appropriate. (b) Application fee. (2) An Application fee is not required when the COFR Operator submits— (i) A request for an additional Individual Certificate under an existing Application; (ii) A request to amend an Application; (iii) A request for Certificate renewal; or (iv) A request to reinstate a Certificate, if submitted within 90 days following the Certificate's revocation. (c) Certification fees. (1) $100 for each vessel listed in, or added to, an Application for one or more Individual Certificates; (2) $100 for each Application for a Fleet Certificate or Master Certificate; and (3) $100 for each request for renewal of an Individual Certificate, a Fleet Certificate or a Master Certificate. (d) Fee refunds. (2) Overpayments of Application and certification fees will be refunded to the COFR Operator. § 138.130 Agents for Service of process. (a) Designation of U.S. agents for service of process. (b) U.S. agent for service of process acknowledgment. (c) How to change the U.S. agent for service of process. (d) Replacement of unavailable U.S. agent for service of process. (e) Service on the Director. (1) Has sent a copy of each document served on the Director to the COFR Operator or guarantor, as applicable, by registered mail, at the COFR Operator or guarantor's last known address on file with the Director; (2) Indicates, at the time process is served upon the Director, that the purpose of the mailing is to effect service of process on the COFR Operator or guarantor; and (3) Provides evidence acceptable to the Director at the time process is served upon the Director, that service was attempted on the designated U.S. agent for service of process but failed, stating the reasons why service on the U.S. agent for service of process was not possible, and that the document was sent to the COFR Operator or guarantor, as required by paragraph (e)(1) of this section. § 138.140 Application withdrawals, COFR denials and revocations. (a) Application withdrawal. (b) Application denials and COFR revocations. (1) If the COFR Operator, or other person acting on the COFR Operator's behalf, makes a false statement in, or in connection with, any submission required by this subpart; (2) If the COFR Operator, or other person acting on the COFR Operator's behalf, fails to establish or maintain acceptable evidence of financial responsibility, as required by this subpart; (3) If the COFR Operator fails to pay the Application and certification fees required by § 138.120; (4) If the COFR Operator or guarantor fails to designate and maintain a U.S. agent for service of process as required by § 138.130; (5) If the COFR Operator, or other person acting on the COFR Operator's behalf, fails to comply with, or respond to, lawful inquiries, regulations, or orders of the U.S. Coast Guard pertaining to the activities subject to this subpart; (6) If the COFR Operator, or other person acting on the COFR Operator's behalf, fails to timely report information required to be reported to the Director under this subpart, including failing to timely submit to the Director statements, data, financial information, notifications, affidavits, or other submissions required by this subpart; or (7) If the Director obtains information indicating that the Application should be denied or that a new COFR is required (for example, a permanent vessel transfer, new COFR Operator, vessel renaming, guaranty termination, disapproval of a guarantor). (c) Procedure for reinstating COFRs following termination of guaranties. (d) Notice to COFR Operator of intent to deny an Application or revoke a COFR. (1) A notice from the Director that an Application is incomplete will be considered a denial unless the Application is completed by the COFR Operator within the period specified in the notice. A COFR subject to revocation remains valid until the COFR is revoked as provided in § 138.140(d)(2) and (3). (2) If the Director issues a notice of intent to deny an Application or revoke a COFR due to a violation under paragraph (b) of this section, the COFR Operator may demonstrate compliance to the Director in writing by no later than the date specified by the Director in the notice. If the COFR Operator demonstrates compliance by that date, the Application will remain under consideration, and any current COFR will remain in effect, unless and until the Director issues a written decision denying the Application or revoking the COFR, as applicable. Otherwise, the Application denial or COFR revocation is effective as of the date specified by the notice. (3) The denial of an Application or revocation of a COFR does not terminate the guaranty. (e) Request for reconsideration. (i) The COFR Operator must submit the request for reconsideration, in writing, to the Director no later than 21 days after the date of the denial or revocation. (ii) The submission must state the COFR Operator's reasons for requesting reconsideration and include all supporting documentation. (2) A decision by the Director on reconsideration of an Application denial or a COFR revocation is final agency action. If the Director does not issue a written decision on the request for reconsideration within 30 days after its submission, the request for reconsideration will be deemed to have been denied, and the Application denial or COFR revocation will be deemed to have been affirmed as a matter of final agency action. Unless the Director issues a decision reversing the revocation, the COFR revocation remains in effect. (f) Duty to remedy violations. § 138.150 Reporting requirements. (a) Report changes of submitted information. (b) A 21-day prior reporting requirement of permanent vessel transfers and other changes requiring issuance of a new COFR. (1) The number of the current COFR; (2) The name of the covered vessel; (3) The type of change planned; (4) The date the change will take place; (5) The reason for the change; (6) For a vessel that will be located in U.S. navigable waters or U.S. Exclusive Economic Zone on the date the change is scheduled to take place, where the vessel will be located on that date (for example, name and location of port); (7) For a vessel name change, the vessel's new legal name; (8) For the planned transfer of a vessel to a new responsible party, and even if the transferee's intent is to scrap or otherwise dispose of the vessel, the name and contact information of the responsible party to whom the vessel is being transferred; (9) For a change of COFR Operator, the name and contact information of the person who will replace the COFR Operator; and (10) Any other changes in the information previously submitted to ensure the information on record at the NPFC is current. (c) Three-day prior reporting of changes not requiring issuance of a new COFR. (d) Reporting by guarantors. (e) Enforcement; deadline exceptions. § 138.160 Non-owning COFR Operator's responsibility for identification. (a) Each COFR Operator of a vessel with a COFR, other than an unmanned, non-self-propelled barge, who is not also an owner of the vessel must ensure that the original or a legible copy of the vessel's demise charter-party (or other written document on the owner's letterhead, signed by the vessel owner, which specifically identifies the COFR Operator named on the COFR) is maintained on board the vessel. (b) The demise charter-party or other document required by paragraph (a) of this section must be presented, upon request, for examination and copying, to the Director or other United States Government official. § 138.170 Enforcement. (a) Applicability. (1) The COFR Operator fails to maintain acceptable evidence of financial responsibility as required; (2) The name of a covered vessel is changed without reporting the change to the Director as required in § 138.150; (3) The COFR Operator ceases, for any reason, to be an operator of a covered vessel, including when a vessel is scrapped or transferred to a new owner or operator, and a new Application and report have not been submitted to the Director as required by §§ 138.80 and 138.150; or (4) The COFR Operator fails to maintain a U.S. agent for service of process. (b) Non-compliance. (c) Withholding and revoking vessel clearance. (d) Denying vessel entry, and detention. (e) Seizure and forfeiture. (f) Administrative and judicial penalties and other relief. (2) Under 18 U.S.C. 1001, any person making a false statement in, or in connection with, a submission under OPA 90 or CERCLA or this subpart is subject to prosecution. (3) Any person who fails to timely pay the fees required by § 138.120 or any other amounts due under OPA 90 or CERCLA or this subpart may also be subject to Federal debt collection under 6 CFR part 11, 44 CFR part 11 and 31 CFR parts 285, and 900 through 904. Subpart B—OPA 90 Limits of Liability (Vessels, Deepwater Ports and Onshore Facilities) Source: 80 FR 72355, Nov. 19, 2015, unless otherwise noted. § 138.200 Scope. This subpart sets forth the limits of liability under Title I of the Oil Pollution Act of 1990, as amended (33 U.S.C. 2701, et seq. § 138.210 Applicability. This subpart applies to you if you are a responsible party for a vessel, a deepwater port, or an onshore facility (including, but not limited to, motor vehicles, rolling stock and onshore pipelines), unless your liability is unlimited under OPA 90 (33 U.S.C. 2704(c)). § 138.220 Definitions. (a) As used in this subpart, the following terms have the meanings set forth in OPA 90 (33 U.S.C. 2701): deepwater port, facility, gross ton, liability, oil, offshore facility, onshore facility, responsible party, tank vessel, vessel (b) As used in this subpart— Annual CPI-U Current period Director, NPFC Edible oil tank vessel Oil spill response vessel Previous period Single-hull § 138.230 Limits of liability. (a) Vessels. (i) For a single-hull tank vessel greater than 3,000 gross tons, the greater of $4,000 per gross ton or $29,591,300; (ii) For a tank vessel greater than 3,000 gross tons, other than a single-hull tank vessel, the greater of $2,500 per gross ton or $21,521,000; (iii) For a single-hull tank vessel less than or equal to 3,000 gross tons, the greater of $4,000 per gross ton or $8,070,400; and (iv) For a tank vessel less than or equal to 3,000 gross tons, other than a single-hull tank vessel, the greater of $2,500 per gross ton or $5,380,300. (2) The OPA 90 limits of liability for any vessel other than a vessel listed in paragraph (a)(1) of this section, including for any edible oil tank vessel and any oil spill response vessel, are the greater of $1,300 per gross ton or $1,076,000. (b) Deepwater ports. (2) The OPA 90 limits of liability for deepwater ports with limits of liability established by regulation under OPA 90 (33 U.S.C. 2704(d)(2)), including for any component pipelines, are— (i) For the Louisiana Offshore Oil Port (LOOP), $110,332,600; and (ii) [Reserved] (c) Onshore facilities. (d) Offshore facilities. [80 FR 72355, Nov. 19, 2015, as amended at 84 FR 39974, Aug. 13, 2019; 87 FR 78864, Dec. 23, 2022] § 138.240 Procedure for updating limits of liability to reflect significant increases in the Consumer Price Index (Annual CPI-U) and statutory changes. (a) Update and publication. Federal Register Federal Register Federal Register (b) Formula for calculating a cumulative percent change in the Annual CPI-U. i.e., i.e., Percent change in the Annual CPI-U = [(Annual CPI-U for Current Period−Annual CPI-U for Previous Period) ÷ Annual CPI-U for Previous Period] × 100. (2) The cumulative percent change value calculated using the formula in paragraph (b)(1) of this section is rounded to one decimal place. (c) Significance threshold. Federal Register. (d) Formula for calculating inflation adjustments. New limit of liability = Previous limit of liability + (Previous limit of liability × percent change in the Annual CPI-U calculated under paragraph (b) of this section), then rounded to the closest $100.