(a) Subparts A and B of this part apply to the marine transfer area for LNG of each new waterfront facility handling LNG and to new construction in the marine transfer area for LNG of each existing waterfront facility handling LNG.

(b) Subpart A of this part and §§ 127.301 through 127.617 apply to the marine transfer area for LNG of each active existing waterfront facility handling LNG.

(c) Sections 127.007 (c), (d), and (e); 127.019(b); and 127.701 of subparts A and B of this part apply to the marine transfer area for LNG of each inactive existing facility.

(d) Subparts A and C of this part apply to the marine transfer area for LHG of each active waterfront facility handling LHG.

(e) Sections 127.007 (c), (d), and (e); 127.019(b); and 127.1325(c) of subparts A

(a) Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in paragraph (b) of this section, the Coast Guard must publish notice of change in the Federal Register and make the material available to the public. All approved material is available for inspection at the U.S. Coast Guard, (G-MOC), Room 1108, 2100 Second Street SW., Washington, DC 20593-0001, and at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. All approved material is available from the sources indicated in paragraph (b) of this section.

(b) The material approved for incorporation by reference in this part, and the sections affected, are:

As used in this part:

Active means accomplishing the transfer of LHG or LNG, or scheduling one to occur, within 12 months of the current date.

Captain of the Port (COTP) means the Coast Guard officer designated by the Commandant to command a Captain of the Port Zone as described in Part 3 of this chapter, or an authorized representative.

Commandant means the Commandant of the U.S. Coast Guard or an authorized representative.

Control room means a space within the LNG waterfront facility from which facility operations are controlled.

District Commander means the Coast Guard officer designated by the Commandant to command a Coast Guard District as described in Part 3 of this chapter, or an authorized representative.

Environmentally sensitive areas include public parks and recreation areas, wildlife and waterfowl refuges, fishing grounds, wetlands, other areas deemed to be of high value to fish and wildlife resources, historic sites, and other protected areas.

Existing as applied to a waterfront facility means a facility handling LNG constructed or being constructed under a contract awarded before June 2, 1988, or a facility handling LHG constructed or being constructed under a contract awarded before January 30, 1996.

Facility means either a waterfront facility handling LHG or a waterfront facility handling LNG.

Fire endurance rating means the duration for which an assembly or structural unit will contain a fire or retain structural integrity when exposed to the temperatures specified in the standard time-temperature curve in NFPA 251.

Flammable product means a product indicated by the letter “F” or by the letters “F + T” in Table 127.005.

Inactive means not active.

Impounding space means a space formed by dikes and floors that confines a spill of LHG or LNG.

LHG means liquefied hazardous gas.

LHG vessel means a vessel constructed or converted to carry LHG, in bulk.

Liquefied hazardous gas (LHG) means a liquid containing one or more of the products listed in Table 127.005.

Liquefied natural gas (LNG) means a liquid or semisolid consisting mostly of methane and small quantities of ethane, propane, nitrogen, or other natural gases.

Liquefied petroleum gas (LPG) means a liquid consisting mostly of propane or butane or both.

LNG means liquefied natural gas.

LNG vessel means a vessel constructed or converted to carry LNG, in bulk.

Loading flange means the connection or group of connections in the cargo transfer pipeline on the facility that connects the facility pipeline to the vessel pipeline.

Marine transfer area for LHG means that part of a waterfront facility handling LHG between the vessel, or where the vessel moors, and the first shutoff valve on the pipeline immediately inland of the terminal manifold or loading arm, including the entire part of a pier or wharf used to serve LHG vessels.

Marine transfer area for LNG means that part of a waterfront facility handling LNG between the vessel, or where the vessel moors, and the last manifold or valve immediately before the receiving tanks.

Mating flange means that flange in the product-transfer pipeline on a waterfront facility handling LHG or a waterfront facility handling LNG that connects this pipeline to the pipeline or transfer hose of the vessel.

MAWP means maximum allowable working pressure.

Maximum allowable working pressure (MAWP) means the maximum gauge pressure permissible at the top of equipment, containers, or pressure vessels while operating at design temperature.

New as applied to a waterfront facility means a facility handling LNG constructed or being constructed under a contract awarded on or after June 2, 1988, or a facility handling LHG constructed or being constructed under a contract awarded on or after January 30, 1996.

Person in charge of transfer operations on the vessel is the person designated the person in charge of cargo transfer under 46 CFR 154.1831.

Release means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, except a minor release of LHG or its vapor, that may occur during the routine handling of LHG. No release is minor if it creates an atmosphere that exceeds the Lower Flammable Limit (LFL) for a flammable product or any Permissible Exposure Limit (PEL) listed in 29 CFR 1910.1000, Table Z-1 or Z-2, for a toxic product.

Substructure means the deck of a pier or wharf and the structural components below that deck.

Toxic product means a product indicated by the letter “T” or by the letters “F+T” in Table 127.005.

Waterfront facility handling LHG means any structure on, in, or under the navigable waters of the United States, or any structure on land or any area on shore immediately adjacent to such waters, used or capable of being used to transfer liquefied hazardous gas, in bulk, to or from a vessel.

Waterfront facility handling LNG means any structure on, in, or under the navigable waters of the United States, or any structure on land or any area on shore immediately adjacent to such waters, used or capable of being used to transfer liquefied natural gas, in bulk, to or from a vessel.

(a) An owner who intends to build a new facility or the owner or operator who plans new construction on an existing facility, must submit a letter of intent that meets paragraph (d) of this section to the COTP of the zone in which the facility is or will be located, at least 60 days before construction begins.

(b) The owner or operator of an active existing facility shall submit a letter of intent that meets paragraph (d) of this section to the COTP of the zone in which the facility is located.

(c) An owner or operator of an inactive existing facility shall submit a letter of intent that meets paragraph (d) of this section to the COTP of the zone in which the facility is located, at least 60 days before transferring LHG or LNG.

(d) Each letter of intent must contain—

(1) The name, address, and telephone number of the owner and operator;

(2) The name, address, and telephone number of the facility;

(3) The physical location of the facility;

(4) A description of the facility;

(5) The LHG or LNG vessels' characteristics and the frequency of LHG or LNG shipments to or from the facility; and

(6) Charts showing waterway channels and identifying commercial, industrial, environmentally sensitive, and residential areas in and adjacent to the waterway used by the LHG or LNG vessels en route to the facility, within 25 kilometers (15.5 miles) of the facility.

(e) The owner or operator who submits a letter of intent under paragraph (a), (b), or (c), shall notify the COTP in writing within 15 days if—

(1) There is any change in the information submitted under paragraphs (d)(1) through (d)(5) of this section; or

(2) No LHG or LNG transfer operations are scheduled within the next 12 months.

After the COTP receives the letter of intent under § 127.007 (a) or (c), the COTP issues a letter of recommendation to the owner or operator of the facility and to the state and local government agencies having jurisdiction, as to the suitability of the waterway for LHG or LNG marine traffic, based on the—

(a) Information submitted under §§ 127.007 (d)(3) through (d)(6);

(b) Density and character of marine traffic in the waterway;

(c) Locks, bridges, or other man-made obstructions in the waterway; and

(d) Following factors adjacent to the facility:

(1) Depths of the water.

(2) Tidal range.

(3) Protection from high seas.

(4) Natural hazards, including reefs, rocks, and sandbars.

(5) Underwater pipelines and cables.

(6) Distance of berthed vessel from the channel and the width of the channel.

The operator shall ensure that the COTP or his representative is allowed to make reasonable examinations and inspections to determine whether the facility meets this part.

(a) The COTP may issue an order to the operator to suspend LHG or LNG transfer operations if the COTP finds any condition requiring immediate action to—

(1) Prevent damage to, or the destruction of, any bridge or other structure on or in the navigable waters of the United States, or any land structure or shore area immediately adjacent to such waters; and

(2) Protect the navigable waters and the resources therein from harm resulting from vessel or structure damage, destruction, or loss.

(b) Each order to suspend transfer operations issued under paragraph (a) of this section—

(1) Is effective immediately;

(2) Contains a statement of each condition requiring immediate action; and

(3) Is withdrawn by the COTP whenever each condition is corrected or no longer exists.

(a) Any person directly affected by an action taken under this part may request reconsideration by the Coast Guard officer responsible for that action.

(b) Except as provided under paragraph (e) of this section, any person not satisfied with a ruling made under the procedure contained in paragraph (a) of this section may—

(1) Appeal that ruling in writing to the District Commander of the district in which the action was taken; and

(2) Supply supporting documentation and evidence that the appellant wishes to have considered.

(c) The District Commander issues a ruling after reviewing the appeal submitted under paragraph (b) of this section. Except as provided under paragraph (e) of this section, any person not satisfied with this ruling may—

(1) Appeal that ruling in writing to the Assistant Commandant for Marine Safety, Security and Environmental Protection, U.S. Coast Guard, Washington, DC 20593-0001; and

(2) Supply supporting documentation and evidence that the appellant wishes to have considered.

(d) The Assistant Commandant for Marine Safety, Security and Environmental Protection issues a ruling after reviewing the appeal submitted under paragraph (c) of this section, which is final agency action.

(e) If the delay in presenting a written appeal has an adverse impact on the operations of the appellant, the appeal under paragraph (b) or (c) of this section—

(1) May be presented orally; and

(2) Must be submitted in writing within five days after the oral presentation—

(i) With the basis for the appeal and a summary of the material presented orally; and

(ii) To the same Coast Guard official who heard the oral presentation.

(a) The COTP may allow alternative procedures, methods, or equipment standards to be used by an operator instead of any requirements in this part if—

(1) The operator submits a written request for the alternative at least 30 days before facility operations under the alternative would begin, unless the COTP authorizes a shorter time; and

(2) The alternative provides at least the same degree of safety provided by the regulations in this part.

(b) The COTP approves or disapproves any alternative requested under paragraph (a) of this section—

(1) In writing; or

(2) Orally, with subsequent written confirmation.

(a) The owner or operator of an active existing facility shall submit two copies of the Operations Manual and of the Emergency Manual to the Captain of the Port of the zone in which the facility is located.

(b) At least 30 days before transferring LHG or LNG, the owner or operator of a new or an inactive existing facility shall submit two copies of the Operations Manual and of the Emergency Manual to the Captain of the Port of the zone in which the facility is located, unless the manuals have been examined and there have been no changes since that examination.

(c) If the COTP finds that the Operations Manual meets § 127.305 or § 127.1305 and that the Emergency Manual meets § 127.307 or § 127.1307, the Captain of the Port returns a copy to the owner or operator marked “Examined by the Coast Guard”.

(d) If the COTP finds that the Operations Manual or the Emergency Manual does not meet this part, the Captain of the Port returns the manual with an explanation of why it does not meet this part.

The marine transfer area for LNG must meet the following criteria in NFPA 59A:

(a) Chapter 2, Sections 2-1.2 and 2-3.

(b) Chapter 4, Section 4-1.3.

(c) Chapter 6.

(d) Chapter 7, Sections 7-6 and 7-7.

(e) Chapter 8, except Sections 8-3, 8-5 and 8-7.2.

(a) If the waterfront facility handling LNG is in a region subject to earthquakes, the piers and wharves must be designed to resist earthquake forces.

(b) Substructures, except moorings and breasting dolphins, that support or are within 5 meters (16.4 feet) of any pipe or equipment containing LNG, or are within 15 meters (49.2 feet) of a loading flange, must—

(1) Be made of concrete or steel; and

(2) Have a fire endurance rating of not less than two hours.

(c) LNG or LPG storage tanks must have the minimum volume necessary for—

(1) Surge protection;

(2) Pump suction supply; or

(3) Other process needs.

(a) LNG impounding spaces must be located so that the heat flux from a fire over the impounding spaces does not cause structural damage to an LNG vessel moored or berthed at the waterfront facility handling LNG.

(b) Each LNG loading flange must be located at least 300 meters (984.3 feet) from the following which are primarily intended for the use of the general public or railways:

(1) Each bridge crossing a navigable waterway.

(2) Each entrance to any tunnel under a navigable waterway.

(a) The electrical power system must have a power source and a separate emergency power source, so that failure of one source does not affect the capability of the other source. The system must meet the National Electrical Code, NFPA 70.

(b) The emergency power source must provide enough power for the operation of the—

(1) Emergency shutdown system;

(2) Communications equipment;

(3) Firefighting equipment; and

(4) Emergency lighting.

(c) If an auxiliary generator is used as an emergency power source, it must meet Section 700-12 of NFPA 70.

(a) The marine transfer area for LNG must have a lighting system and separate emergency lighting.

(b) All outdoor lighting must be located or shielded so that it is not confused with any aids to navigation and does not interfere with navigation on the adjacent waterways.

(c) The lighting system must provide an average illumination on a horizontal plane one meter (3.3 feet) above the deck that is—

(1) 54 lux (five foot-candles) at any loading flange; and

(2) 11 lux (one foot-candle) at each work area.

(d) The emergency lighting must provide lighting for the operation of the—

(1) Emergency shutdown system;

(2) Communications equipment; and

(3) Firefighting equipment.

(a) The marine transfer area for LNG must have a ship-to-shore communication system and a separate emergency ship-to-shore communication system.

(b) Each ship-to-shore communication system must be a dedicated system that allows voice communication between the person in charge of transfer operations on the vessel, the person in charge of shoreside transfer operations, and personnel in the control room.

(a) The marine transfer area for LNG must have warning signs that—

(1) Meet paragraph (b) of this section;

(2) Can be seen from the shore and the water; and

(3) Have the following text:

(b) Each letter in the words on the sign must be—

(1) Block style;

(2) Black on a white background; and

(3) 7.6 centimeters (3 inches) high.

This part applies to all passenger terminals in the United States or its territories when being used for the assembling, processing, embarking, or disembarking of passengers or baggage for passenger vessels over 100 gross tons, carrying more than 12 passengers for hire; making a voyage lasting more than 24 hours, any part of which is on the high seas. It does not apply to terminals when serving ferries that hold Coast Guard Certificates of Inspection endorsed for “Lakes, Bays, and Sounds”, and that transit international waters for only short periods of time, on frequent schedules.

The definitions in part 120 of this chapter apply to this part, except for the definition of You. As used in this part:

You means the owner or operator of a passenger terminal.

(a) Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in paragraph (b) of this section, the Coast Guard must publish notice of change in the Federal Register and must make the material available to the public. All approved material may be inspected at the U.S. Coast Guard, (G-MSE), 2100 Second Street SW., Washington, DC, and at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Copies may be obtained from IMO, 4 Albert Embankment, London SE1 7 SR.

(b) The materials approved for incorporation by reference in this part and the sections affected are:

(a) This part prescribes the policies, procedures, and administrative practices regarding offshore oil pollution liability and compensation, including the administration and general operation of the fund established under Title III of the Outer Continental Shelf Lands Act Amendments of 1978 (Pub. L. 95-372, 43 U.S.C. 1811 et. seq.).

(a) This part applies to each person who:

(1) Owns oil obtained from the Outer Continental Shelf when the oil in produced;

(2) Owns, operates, or is the guarantor of the owner or operator of any vessel;

(3) Owns, operates, or is the guarantor of the owner or operator of any offshore facility;

(4) Sustains an economic loss as a consequence of oil pollution arising from Outer Continental Shelf activities; or

(5) Otherwise has responsibilities under Title III of the Act and the regulations in this part.

(a) As used in this part, the following terms shall have the same meaning as defined in section 301 of Title III of the Outer Continental Shelf Lands Act Amendments of 1978 (Pub. L. 95-372): “barrel”; “claim”; “discharge”; “facility”; “Fund”; “guarantor”; “incident”; “offshore facility”; “oil pollution”; “operator”; “owner”; “person”; “person in charge”; “public vessel”; and “vessel”.

(b) As used in this part:

(1) Act means Title III of the Outer Continental Shelf Lands Act Amendments of 1978 (Pub. L. 95-372), entitled “Offshore Oil Spill Pollution Fund”.

(2) Captain of the Port means a Coast Guard officer designated as Captain of the Port for the areas described in Part 3 of this chapter, or that person's authorized representative or, where there is no Captain of the Port area, the District Commander.

(3) Commandant means the Commandant of the Coast Guard or that person's authorized representative.

(4) District Commander means the Coast Guard officer commanding a Coast Guard District described in Part 3 of this chapter, or that person's authorized representative.

(5) Fund Administrator means the person to whom the authority and functions of the Commandant as administrator of the Fund are delegated.

(6) Oil means petroleum, including crude oil or any fraction or residue therefrom and natural gas condensate, except that the term does not include natural gas.

(7) Outer Continental Shelf or OCS means “outer Continental Shelf” as defined in section 2(a) of the Outer Continental Shelf Lands Act (43 U.S.C.1331(a)).

(a) The Fund Administrator is delegated authority to perform those functions assigned or delegated to the Secretary of Transportation under the Act not reserved by the Secretary of Transportation or the Commandant.

(b) The Fund Administrator may redelegate and authorize successive redelegations of the authority granted in paragraph (a) of this section within the command under which that person has jurisdiction or to members of the Fund staff.

The address to which correspondence relating to the Coast Guard's administration of the Fund should be directed is: Director National Pollution Funds Center, NPFC MS 7100, U.S. Coast Guard, 4200 Wilson Blvd., Suite 1000, Arlington, VA 20598-7100.

(a) The purpose of this subpart is to state the general requirements concerning the levy of fees.

(a) A fee of $.03 per barrel is levied on all oil produced on the OCS and is imposed upon the owner of the oil when such oil is produced.

(b) The owner of oil obtained from the OCS shall, for the purpose of computing the barrel fee levied in paragraph (a) of this section, measure OCS oil production by employing the methods and criteria of the Minerals Management Service contained in 30 CFR 250.180.

(c) The barrel fee levied in paragraph (a) of this section applies whenever the unobligated Fund balance is less than $200,000,000.

(d) Payment of the fee levied in paragraph (a) of this section is made in accordance with the fee collection regulations of the IRS at 26 CFR part 301, § 301.9001. Federal government entitlement to royalty oil does not constitute ownership of oil at time of production. The Fund Administrator advises the IRS when the unobligated Fund balance requires starting or stopping the collection of the barrel fee levied in this section, so the IRS may provide appropriate notice to affected owners of OCS oil.

(a) This subpart applies to the owner or operator of each offshore facility required by the Act to establish and maintain evidence of financial responsibility.

(b) For the purpose of this subpart:

(1) All structures, including platforms, wells, and pipelines, are considered a single offshore facility if they are physically connected, located upstream of the point of custody transfer, within the same oil field, and under one ownership.

(2) If separate parts of a structure, including platforms and pipelines, are owned separately, each part having common ownership is considered a separate offshore facility.

(3) A mobile offshore drilling unit is considered an offshore facility from the moment a drill shaft or other device connected to the unit first touches the seabed or connects to a well for the purposes of exploration, development, or production of oil until drilling is completed and the unit is no longer attached to the well or drill hole by any device.

(4) A mobile offshore drilling unit considered an offshore facility under paragraph (b)(3) of this section remains a separate facility when physically connected to another offshore facility, unless both are under one ownership.

(5) All segments of a common carrier pipeline from the point of custody transfer to the shore, including any pumping or booster stations, which are under one ownership are considered a single offshore facility.

(6) Any pipeline, which is under one ownership, between two offshore facilities, or between an offshore facility and the shore, is considered a single offshore facility.

(7) Offshore facilities which drill for, produce, or process only natural gas are not subject to this subpart unless the facilities have the capacity to transport, store, or otherwise handle more than 1,000 barrels of condensate at any one time.

(a) Each facility that is used for drilling for, producing, or processing oil, or which has the capacity to transport, store, transfer, or otherwise handle more than one thousand barrels of oil at any one time must be covered by evidence of financial responsibility submitted by or on behalf of the owner or operator of the facility, in the amount of $35,000,000.

(b) Evidence of financial responsibility established and maintained by a person who owns or operates more than one facility, or who has an interest in the ownership or operation of more than one facility, may be applied by that person towards establishing and maintaining the required evidence of financial responsibility for each facility in which that person has an interest, if the evidence is available to satisfy liabilities arising out of incidents involving those facilities.

(a) Evidence of financial responsibility may be established by any one, or any combination acceptable to the Fund Administrator, of the following methods:

(1) Insurance;

(2) Guaranty;

(3) Indemnity;

(4) Surety bond; or

(5) Qualification as self-insurer.

(b) The Fund Administrator will accept alternative evidence of financial responsibility if, in the Fund Administrator's opinion, it establishes an equivalent degree of financial responsibility for the purposes of this subpart.

(a) Insurance filed with the Fund Administrator as evidence of financial responsibility shall be issued by an insurer that is acceptable to the Fund Administrator. Those insurers may include domestic and foreign insurance companies, corporations or associations of individual insurers, protection and indemnity associations, or other persons acceptable to the Fund Administrator.

(b) An insurer must:

(1) Agree to be sued directly, within the limits of the policy coverage, by any person for claims under the Act against the owner or operator; and

(2) Designate an agent in the United States for service of process.

(c) Insurance as evidence of financial responsibility must indicate the effective date in the endorsement on the application for Certificate of Financial Responsibility, and must remain in force until the date of termination indicated in the endorsement or until—

(1) 30 days after mailing, by certified mail, to the Fund Administrator, and the person insured, notification of intent to cancel; or

(2) Other evidence of financial responsibility acceptable to the Fund Administrator has been established; or

(3) The facility to which the insurance applies ceases to be a facility under § 135.201(b).

(d) Termination of insurance coverage shall not affect the liability of the insurer for an incident occurring before the effective date of termination.

(e) Confirmation of insurance may be accepted from an insurance broker that is acceptable to the Fund Administrator, subject to the Fund Administrator's approval of the individual underwriters, in lieu of their signature on an application, provided the confirmation:

(1) States the insurance covers liabilities under the Act;

(2) Sets forth the limit and deductible;

(3) Provides for direct action against the individual underwriters to the extent of their contracts;

(4) Names the underwriters and percentages of the limit accepted by each;

(5) States that the underwriters agree to give prior written notice of cancellation or change to the Fund Administrator as required in paragraph (c) of this section; and

(6) States that the notice indicated in paragraph (e)(5) of this section will not affect the underwriter's liability for incidents occurring before the effective date of cancellation.

(a) Guarantors must:

(1) Agree to be sued directly, within the limits the guaranty, by any person for claims under the Act against the owner or operator; and

(2) Designate an agent in the United States for service of process.

(b) Guaranties filed as evidence of financial responsibility must be accompanied by the same proof that the Guarantor is financially responsible as this subpart would require of the owner or operator; i.e., insurance, surety bond, self-insurance, or other acceptable methods.

(c) A guaranty as evidence of financial responsibility must indicate the effective date in the endorsement on the application for Certificate of Financial Responsibility, and must remain in force until the date of termination indicated in the endorsement or until:

(1) 30 days after mailing, by certified mail, to the Fund Administrator, and the person guarantied, notification of intent to cancel; or

(2) Other evidence of financial responsibility acceptable to the Fund Administrator has been established; or

(3) The facility to which the guaranty applies ceases to be a facility under § 135.201(b).

(d) Termination of the guaranty shall not affect the liability of the guarantor for an incident occurring before the effective date of termination.

(a) An indemnitor must:

(1) Agree to be sued directly, within the limits of the contract coverage, by any person for claims under the Act against the owner or operator to the extent of the indemnity coverage; and

(2) Designate an agent in the United States for service of process.

(b) Indemnity filed as evidence of financial responsibility must be accompanied by the same proof of the indemnitor's financial responsibility as this subpart would require of the owner or operator; i.e., insurance, surety bond, self-insurance; or other acceptable methods.

(c) An indemnity as evidence of financial responsibility must indicate the effective date in the endorsement on the application for Certificate of Financial Responsibility, and must remain in force until the date of termination indicated in the endorsement or until—

(1) 30 days after mailing, by certified mail, to the Fund Administrator, and the person indemnified, notification of intent to cancel; or

(2) Other evidence of financial responsibility acceptable to the Fund Administrator has been established; or

(3) The facility to which the indemnity applies ceases to be a facility under § 135.201(b).

(d) Termination of an indemnity shall not affect the liability of the indemnitor for an incident occurring before the effective date of termination.

(a) Each surety bond filed with the Fund Administrator as evidence of financial responsibility shall be issued by a bonding company that:

(1) Is authorized to do business in the United States;

(2) Is licensed to do business in the state or territory in which the bond is executed;

(3) Is certified by the Department of the Treasury with respect to the issuance of Federal bonds in the penal sum of the bond; and

(4) Designates an agent in the United States for service of process.

(b) The bonding company must agree to be sued directly, within the limits of the surety bond, by any person for claims under the Act against the owner or operator.

(c) A surety bond as evidence of financial responsibility must indicate the effective date in the endorsement on the application for Certificate of Financial Responsibility, and must remain in force until the date of termination indicated in the endorsement or until:

(1) 30 days after mailing, by certified mail, to the Fund Administrator, and the person bonded, notification of intent to cancel; or

(2) Other evidence of financial responsibility acceptable to the Fund Administrator has been established; or

(3) The facility to which the surety bond applies ceases to be a facility under § 135.201(b).

(d) Termination of the surety bond shall not affect the liability of the surety for an incident occurring before the effective date of termination.

(a) Qualification for self insurance must be supported by a copy of the self-insurer's current balance sheet, income statement, and statement of changes in financial position that are certified by an independent Certified Public Accountant and must be accompanied by either:

(1) An additional statement confirming that the self-insurer's current U.S. assets, including those of consolidated subsidiaries held in the U.S., not including pledged assets or stock not publicly traded, exceed the current U.S. liabilities, and the self-insurers net worth exceeds the amount of the requested self-insurance; or

(2) A statement, based on an analysis of the self-insurer's financial position, which shows that sufficient assets or cash flow, other than which might be damaged as a result of a pollution incident, are available which may be liquidated to provide the funds necessary to retire a claim for the amount of the self-insurance without placing the self-insurer in an insolvent position.

(b) The statements required by paragraphs (a) (1) and (2) of this section must be prepared and submitted by the involved Certified Public Accountant when the required financial statements are prepared in consolidated form and the liability represents less than the full financial backing of the consolidated entity, otherwise they may be prepared and submitted by the Treasurer or equivalent official.

(c) If the self-insurer files a Securities and Exchange Commission Form 10-K report, a copy of the self-insurer's most recent 10-K report must be filed with the Fund Administrator within 120 days after the end of the fiscal year to which it relates, in addition to filing the most recent 10-K report with the initial application.

(d) Each self-insurer must file annually with the Fund Administrator, copies of documents required under paragraph (a) of this section, within 120 days after the close of the self-insurer's fiscal accounting period. If a self-insurer files a 10-K report with the Fund Administrator under paragraph (c) of this section which contains some of the financial statements required in paragraph (a), a separate filing of those specific statements need not be made.

(a) Applicants shall:

(1) If the facility is in existence before September 17, 1979, apply for a Certificate of Financial Responsibility before September 17, 1979.

(2) If the offshore facility is not in existence on September 17, 1979, apply for a Certificate of Financial Responsibility at least 45 days before placing the offshore facility into operation or coverage becomes effective.

(3) If submitting an application to include an additional facility under previously established evidence of financial responsibility, apply for a Certificate of Financial Responsibility as early as possible before the anticipated date of desired coverage.

(b) Each application for a Certificate of Financial Responsibility must be made on a Coast Guard prescribed Application for Certificate of Financial Responsibility form, available from the Fund Administrator or any Coast Guard District Office. This form must be submitted for each facility; however, if evidence of financial responsibility has been previously established in an amount sufficient to meet § 135.203 (a), no additional evidence need be submitted with the application.

(c) Each application form submitted under this section must be signed by the applicant. A written statement proving authority to sign must also be submitted where the signer is not disclosed as an individual (sole proprietor) applicant, a partner in a partnership applicant, or a director or other officer of a corporate applicant.

(d) Financial data or other information submitted under this section that is proprietary in nature, or constitutes a trade secret, must be clearly designated as such to insure confidential treatment by the Fund Administrator, under 5 U.S.C. 552, the Freedom of Information Act, which provides for exemption from disclosure of trade secret data.

(e) If any of the information submitted for certification is determined by the Fund Administrator to be insufficient the Fund Administrator may require additional information before final consideration of the application.

(f) Certificates, as issued, are to be considered property of the U.S. Government, are not to be altered in any manner, and must be surrendered on demand when revoked in accordance with § 135.223 of this subpart.

(g) Applicants shall obtain a Certificate of Financial Responsibility for each facility.

(a) Each owner, operator, or guarantor of an offshore facility shall within ten days notify the Fund Administrator in writing when any changes occur which prevent the owner, operator, or guarantor, from meeting the obligations for which a Certificate of Financial Responsibility has been issued.

(b) Based on notice of a change in financial capability under paragraph (a) of this section, the Fund Administrator may revoke a Certificate of Financial Responsibility.

(a) If a Certificate of Financial Responsibility becomes invalid for any reason, an application for a new certificate must be immediately submitted to the Fund Administrator in accordance with § 135.204.

(a) A certificate may be denied or revoked for any of the following reasons:

(1) Making any willfully false statement to the Fund Administrator in connection with establishing or maintaining evidence of financial responsibility.

(2) Failure of an applicant or certificant to establish or maintain evidence of financial responsibility as required by the regulations in this subpart.

(3) Failure to comply with or respond to inquiries, regulations, or orders of the Fund Administrator concerning establishing or maintaining evidence of financial responsibility.

(4) Failure to timely file the reports or documents required by § 135.213 (c) and (d).

(5) Cancellation or termination of any insurance policy, surety bond, indemnity, or guaranty issued under this subpart or modification thereto which reduces the financial capacity of the applicant or certificant to meet the requirements of this subpart, unless substitute evidence of financial responsibility has been submitted to and accepted by the Fund Administrator.

(b) Denial or revocation of a certificate shall be immediate and without prior notice in a case where the applicant or certificant:

(1) Is no longer the owner or operator of the offshore facility in question;

(2) Fails to furnish acceptable evidence of financial responsibility in support of an application; or

(3) Permits the cancellation or termination of the insurance policy, surety bond, indemnity, or guaranty upon which the continued validity of the certificate is based.

(c) In any other case, before the denial or revocation of a certificate, the Fund Administrator advises the applicant or certificant, in writing, of the intention to deny or revoke the certificate, and shall state the reason therefor.

(d) If the reason for an intended revocation is failure to file the reports or documents required by § 135.213 (c) and (d) the revocation shall be effective 10 days after the date of receipt of the notice of intention to revoke, unless the certificant shall, before revocation, submit the required material or demonstrate that the required material was timely filed.

(e) If the intended denial or revocation is based upon one of the reasons in paragraph (a)(1) or (a)(3) of this section, the applicant or certificant may request, in writing, a hearing to show that the applicant or certificant is in compliance with this subpart. If the applicant or certificant fails to file a timely request for a hearing, the denial or revocation is effective 10 days after receipt of the notice.

(f) If a request for a hearing under paragraph (e) of this section is received by the Fund Administrator within 10 days after the date of receipt of a notice of intention to deny or revoke, the Fund Administrator grants a hearing and notifies the requesting party of the date, time, and location of the hearing. If a requesting party fails to enter an appearance at the scheduled hearing, or in lieu thereof fails to submit written evidence for the consideration of the hearing official, denial or revocation is effective as of the scheduled date and time of the hearing, unless an extension of time is granted by the Fund Administrator for good cause shown.

(g) Hearings under this section are informal and are conducted by an official designated by the Fund Administrator. The official conducting the hearing considers all relevant material submitted and makes recommendations to the Fund Administrator.

(h) The Fund Administrator's decision is final agency action.

As used in this subpart:

Occurrences which pose an imminent threat of oil pollution means those incidents that are likely to result in a discharge of oil and include, but are not limited to: vessel collisions, grounding or stranding; structural failure in a tank, pipeline or other oil handling system; fire, explosion or other events which may cause structural damage to a vessel or offshore facility.

(a) The person in charge of a vessel or offshore facility that is involved in an incident, including occurrences which pose an imminent threat of oil pollution shall, as soon as that person has knowledge of the incident, immediately notify by telephone, radio telecommunication or a similar rapid means of communication, in the following order of preference:

(1) (Within or offshore of the 48 contiguous States only) The Duty Officer, National Response Center, U.S. Coast Guard, Room 2111, 2100 Second Street, SW, Washington, DC 20593-0001, toll free telephone number: 800-424-8802, direct telephone: 202-267-2675, or Fax: 202-267-1322; or

(2) The commanding officer or supervisor of any Coast Guard Sector Office, Captain of the Port Office, Marine Safety Unit or Port Safety Detachment in the vicinity of the incident; or

(3) The commanding officer or officer in charge of any other Coast Guard unit in the vicinity of the incident; or

(4) The Commander of any Coast Guard District.

(b) Notification given in accordance with this subpart constitutes fulfillment of the requirements of Subpart B of 33 CFR Part 153 concerning Notice of the Discharge of Oil.

(a) In each notification provided under § 135.305, the person in charge of the vessel or offshore facility involved in the incident shall provide his or her name and telephone number, or radio call sign, and, to the extent known, the:

(1) Location, date and time of the incident;

(2) Quantity of oil involved;

(3) Cause of the incident;

(4) Name or other identification of the vessel or offshore facility involved;

(5) Size and color of any slick or sheen and the direction of movement;

(6) Observed on scene weather conditions, including wind speed and direction, height and direction of seas, and any tidal or current influence present;

(7) Actions taken or contemplated to secure the source or contain and remove or otherwise control the discharged oil;

(8) Extent of any injuries or other damages incurred as a result of the incident;

(9) Observed damage to living natural resources; and

(10) Any other information deemed relevant by the reporting party or requested by the person receiving the notification.

(b) The person giving notification of an incident must not delay notification to gather all required information and must provide any information not immediately available when it becomes known.

(a) The owner, operator, master or agent of any vessel subject to the Act shall, upon request by any Coast Guard officer or petty officer, permit access to the vessel and produce for examination the Certificate of Financial Responsibility.

(a) The Captain of the Port issues denial or detention orders to the owner, operator, agent, or master of any vessel that cannot show upon request a valid Certificate of Financial Responsibility issued under the Act.

(b) A denial order forbids entry of any vessel subject to the Act to any port or place in the United States or to the navigable waters of the United States.

(c) A detention order detains any vessel subject to the Act at the port or place in the United States from which it is about to depart for any other port or place in the United States.

(d) The Captain of the Port terminates a denial or detention order when the owner, operator, agent, or master of a vessel furnishes adequate evidence that the certification of financial responsibility requirements under the Act have been met.

(a) The owner, operator, agent or master of a vessel issued a denial or detention order under this subpart may petition the District Commander in any manner to review that order.

(b) Upon completion of review, the District Commander affirms, sets aside, or modifies the order.

(c) Unless otherwise determined by the District Commander a denial or detention order remains in effect pending the outcome of any petition or appeal of that order.

(d) The District Commander acts on all petitions or appeals within 10 days of receipt.

(e) The decision of the District Commander is final agency action.

(a) This part prescribes regulations for—

(1) Presentation, filing, processing, settlement, and adjudication of claims authorized to be presented to the Oil Spill Liability Trust Fund (the Fund) under section 1013 of the Oil Pollution Act of 1990 (the Act) (33 U.S.C. 2713) for certain uncompensated removal costs or uncompensated damages resulting from the discharge, or substantial threat of discharge, of oil from a vessel or facility into or upon the navigable waters, adjoining shorelines, or the exclusive economic zone;

(2) Designation of the source of the incident, notification to the responsible party of the designation, and advertisement of the designation and claims procedures; and

(3) Other related matters.

(b) This part applies to claims resulting from incidents occurring after August 18, 1990.

(c) Nothing in this part—

(1) Preempts the authority of any State or political subdivision thereof from imposing any additional liability or requirements with respect to—

(i) The discharge of oil or other pollution by oil within such State; or

(ii) Any removal activities in connection with such a discharge; or

(2) Affects or modifies in any way the obligations or liabilities of any person under the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) or State law, including common law; or

(3) Affects the authority of any State—

(i) To establish, or to continue in effect, a fund any purpose of which is to pay for costs or damages arising out of, or directly resulting from, oil pollution or the substantial threat of oil pollution; or

(ii) To require any person to contribute to such a fund; or

(4) Affects the authority of the United States or any State or political subdivision thereof to impose additional liability or additional requirements relating to a discharge, or substantial threat of a discharge, of oil.

Anyone desiring to file a claim against the Fund may obtain general information on the procedure for filing a claim from the Director National Pollution Funds Center, NPFC MS 7100, U.S. Coast Guard, 4200 Wilson Blvd., Suite 1000, Arlington, VA 20598-7100, (800) 280-7118.

In addition to other applicable limitations on presenting claims to the Fund, claims by foreign claimants to recover removal costs or damages may be presented only when the requirements of section 1007 of the Act (33 U.S.C. 2707) are met.

Persons submitting false claims or making false statements in connection with claims under this part may be subject to prosecution under Federal law, including but not limited to 18 U.S.C. 287 and 1001. In addition, persons submitting written documentation in support of claims under this part which they know, or should know, is false or omits a material fact may be subject to a civil penalty for each claim. If any payment is made on the claim, the claimant may also be subject to an assessment of up to twice the amount claimed. These civil sanctions may be imposed under the Program Fraud Civil Remedies Act, 31 U.S.C. 3801-3812, as implemented in 49 CFR part 31.

(a) Except as provided under section 1012(h)(3) of the Act (33 U.S.C. 2712(h)(3)) (minors and incompetents), the Fund will consider a claim only if presented in writing to the Director, NPFC, within the following time limits:

(1) For damages, within three years after—

(i) The date on which the injury and its connection with the incident in question were reasonably discoverable with the exercise of due care.

(ii) In the case of natural resources damages under section 1002(b)(2)(A) of the Act (33 U.S.C. 2702(b)(2)(A)), the date under paragraph (a)(1)(i) of this section, or within three years from the date of completion of the natural resources damage assessment under section 1006(e) of the Act (33 U.S.C. 2706(e)), whichever is later.

(2) For removal costs, within six years after the date of completion of all removal actions for the incident. As used in this paragraph, “date of completion of all removal actions” is defined as the actual date of completion of all removal actions for the incident or the date the FOSC determines that the removal actions which form the basis for the costs being claimed are completed, whichever is earlier.

(b) Unless the Director, NPFC, directs in writing that the claim be submitted elsewhere, a claim is deemed presented on the date the claim is actually received at the Director National Pollution Funds Center, NPFC MS 7100, U.S. Coast Guard, 4200 Wilson Blvd., Suite 1000, Arlington, VA 20598-7100. If the Director, NPFC, directs that the claim be presented elsewhere, the claim is deemed presented on the date the claim is actually received at the address in the directive.

(a) Except as provided in paragraph (b) of this section, all claims for removal costs or damages must be presented first to the responsible party or guarantor of the source designated under § 136.305.

(b) Claims for removal costs or damages may be presented first to the Fund only—

(1) By any claimant, if the Director, NPFC, has advertised, or otherwise notified claimants in writing, in accordance with § 136.309(e);

(2) By a responsible party who may assert a claim under section 1008 of the Act (33 U.S.C. 2708);

(3) By the Governor of a State for removal costs incurred by that State; or

(4) By a United States claimant in a case where a foreign offshore unit has discharged oil causing damage for which the Fund is liable under section 1012(a) of the Act (33 U.S.C. 2712(a)).

(c) If a claim is presented in accordance with paragraph (a) of this section and—

(1) Each person to whom the claim is presented denies all liability for the claim; or

(2) The claim is not settled by any person by payment within 90 days after the date upon which (A) the claim was presented, or (B) advertising was begun pursuant to § 136.309(d), whichever is later, the claimant may elect to commence an action in court against the responsible party or guarantor or to present the claim to the Fund.

(d) No claim of a person against the Fund will be approved or certified for payment during the pendency of an action by the person in court to recover costs which are the subject of the claim.

(a) The claimant bears the burden of providing all evidence, information, and documentation deemed necessary by the Director, NPFC, to support the claim.

(b) Each claim must be in writing for a sum certain for compensation for each category of uncompensated damages or removal costs (as described in Subpart C of this part) resulting from an incident. If at any time during the pendency of a claim against the Fund the claimant receives any compensation for the claimed amounts, the claimant shall immediately amend the claim.

(c) Each claim must be signed in ink by the claimant certifying to the best of the claimant's knowledge and belief that the claim accurately reflects all material facts.

(d) In addition to the other requirements of this section, any claim presented by a legal representative of the claimant must also be signed by the legal representative and—

(1) Be presented in the name of the claimant;

(2) Show the title or legal capacity of the representative; and

(3) Provide proof of authority to act for the claimant.

(e) Each claim must include at least the following, as applicable:

(1) The full name, street and mailing addresses of residence and business, and telephone numbers of the claimant.

(2) The date, time, and place of the incident giving rise to the claim.

(3) The identity of the vessel, facility, or other entity causing or suspected to have caused the removal costs or damages claimed and the basis for such identity or belief.

(4) A general description of the nature and extent of the impact of the incident, the costs associated with removal actions, and damages claimed, by category as delineated in Subpart C of this part, including, for any property, equipment, or similar item damaged, the full name, street and mailing address, and telephone number of the actual owner, if other than the claimant.

(5) An explanation of how and when the removal costs or damages were caused by, or resulted from, an incident.

(6) Evidence to support the claim.

(7) A description of the actions taken by the claimant, or other person on the claimant's behalf, to avoid or minimize removal costs or damages claimed.

(8) The reasonable costs incurred by the claimant in assessing the damages claimed. This includes the reasonable costs of estimating the damages claimed, but not attorney's fees or other administrative costs associated with preparation of the claim.

(9) To the extent known or reasonably identifiable by the claimant, the full name, street and mailing address, and telephone number of each witness to the incident, to the discharge, or to the removal costs or damages claimed, along with a brief description of that person's knowledge.

(10) A copy of written communications and the substance of verbal communications, if any, between the claimant and the responsible party or guarantor of the source designated under § 136.305 and a statement indicating that the claim was presented to the responsible party or guarantor, the date it was presented, that it was denied or remains not settled and, if known, the reason why it was denied or remains not settled.

(11) If the claimant has insurance which may cover the removal costs or damages claimed, the information required under § 136.111.

(12) A statement by the claimant that no action has been commenced in court against the responsible party or guarantor of the source designated under § 136.305 or, if an action has been commenced, a statement identifying the claimant's attorney and the attorney's address and phone number, the civil action number, and the court in which the action is pending.

(13) In the discretion of the Director, NPFC, any other information deemed relevant and necessary to properly process the claim for payment.

(a) The claims of subrogor (e.g., insured) and subrogee (e.g., insurer) for removal costs and damages arising out of the same incident should be presented together and must be signed by all claimants.

(b) A fully subrogated claim is payable only to the subrogee.

(c) A subrogee must support a claim in the same manner as any other claimant.

(a) A claimant must specify all of the claimant's known removal costs or damages arising out of a single incident when submitting a claim.

(b) Removal costs and each separate category of damages (as described in subpart C of this part) must be separately listed with a sum certain attributed to each type and category listed.

(c) At the sole discretion of the Director, NPFC, removal costs and each separate category of damages may be treated separately for settlement purposes.

(a) A claimant shall provide the following information concerning any insurance which may cover the removal costs or damages for which compensation is claimed:

(1) The name and address of each insurer.

(2) The kind and amount of coverage.

(3) The policy number.

(4) Whether a claim has been or will be presented to an insurer and, if so, the amount of the claim and the name of the insurer.

(5) Whether any insurer has paid the claim in full or in part or has indicated whether or not payment will be made.

(b) If requested by the Director, NPFC, the claimant shall provide a copy of the following material:

(1) All insurance policies or indemnification agreements.

(2) All written communications, and a summary of all oral communications, with any insurer or indemnifier.

(c) A claimant shall advise the Director, NPFC, of any changes in the information provided under this section.

A claimant must include an accounting, including the source and value, of all other compensation received, applied for, or potentially available as a consequence of the incident out of which the claim arises including, but not limited to, monetary payments, goods or services, or other benefits.

A claim for removal costs may be presented by any claimant.

In addition to the requirements of Subparts A and B of this part, a claimant must establish—

(a) That the actions taken were necessary to prevent, minimize, or mitigate the effects of the incident;

(b) That the removal costs were incurred as a result of these actions;

(c) That the actions taken were determined by the FOSC to be consistent with the National Contingency Plan or were directed by the FOSC.

The amount of compensation allowable is the total of uncompensated reasonable removal costs of actions taken that were determined by the FOSC to be consistent with the National Contingency Plan or were directed by the FOSC. Except in exceptional circumstances, removal activities for which costs are being claimed must have been coordinated with the FOSC.

(a) Claims for uncompensated natural resource damages may be presented by an appropriate natural resources trustee. However, in order to facilitate the processing of these claims with respect to a single incident where multiple trustees are involved and to prevent double recovery, the affected trustees should select a lead administrative trustee who will present consolidated claims on behalf of the trustees.

(b) A trustee may present a claim for the reasonable cost of assessing natural resources damages separately from a claim for the cost of developing and implementing plans for the restoration, rehabilitation, replacement, or acquisition of the equivalent of the natural resources damaged.

In addition to the requirements of subparts A and B of this part, a trustee must do the following:

(a) Submit the assessment and restoration plans which form the basis of the claim.

(b) Provide documented costs and cost estimates for the claim. Final cost estimates for conducting damage assessments or implementing a restoration plan may form the basis for a claim against the Fund for an uncompensated natural resources damage claim.

(c) Identify all trustees who may be potential claimants for the same natural resources damaged.

(d) Certify the accuracy and integrity of any claim submitted to the Fund, and certify that any actions taken or proposed were or will be conducted in accordance with the Act and consistent with all applicable laws and regulations.

(e) Certify whether the assessment was conducted in accordance with applicable provisions of the natural resources damage assessment regulations promulgated under section 1006(e)(1) of the Act (33 U.S.C. 2706(e)(1)). Identify any other or additional damage assessment regulations or methodology utilized.

(f) Certify that, to the best of the trustee's knowledge and belief, no other trustee has the right to present a claim for the same natural resources damages and that payment of any subpart of the claim presented would not constitute a double recovery for the same natural resources damages.

(a) The amount of compensation allowable is the reasonable cost of assessing damages, and the cost of restoring, rehabilitating, replacing, or acquiring the equivalent of the damaged natural resources.

(b) In addition to any other provision of law respecting the use of sums recovered for natural resources damages, trustees shall reimburse the Fund for any amounts received from the Fund in excess of that amount required to accomplish the activities for which the claim was paid.

(a) A claim for injury to, or economic losses resulting from the destruction of, real or personal property may be presented only by a claimant either owning or leasing the property.

(b) Any claim for loss of profits or impairment of earning capacity due to injury to, destruction of, or loss of real or personal property must be included as subpart of the claim under this section and must include the proof required under § 136.233.

(a) In addition to the requirements of subparts A and B of this part, a claimant must establish—

(1) An ownership or leasehold interest in the property;

(2) That the property was injured or destroyed;

(3) The cost of repair or replacement; and

(4) The value of the property both before and after injury occurred.

(b) In addition, for each claim for economic loss resulting from destruction of real or personal property, the claimant must establish—

(1) That the property was not available for use and, if it had been, the value of that use;

(2) Whether or not substitute property was available and, if used, the costs thereof; and

(3) That the economic loss claimed was incurred as the result of the injury to or destruction of the property.

(a) The amount of compensation allowable for damaged property is the lesser of—

(1) Actual or estimated net cost of repairs necessary to restore the property to substantially the same condition which existed immediately before the damage;

(2) The difference between value of the property before and after the damage; or

(3) The replacement value.

(b) Compensation for economic loss resulting from the destruction of real or personal property may be allowed in an amount equal to the reasonable costs actually incurred for use of substitute commercial property or, if substitute commercial property was not reasonably available, in an amount equal to the net economic loss which resulted from not having use of the property. When substitute commercial property was reasonably available, but not used, allowable compensation for loss of use is limited to the cost of the substitute commercial property, or the property lost, whichever is less. Compensation for loss of use of noncommercial property is not allowable.

(c) Compensation for a claim for loss of profits or impairment of earning capacity under § 136.213(b) is limited to that allowable under § 136.235.

(a) A claim for loss of subsistence use of natural resources may be presented only by a claimant who actually uses, for subsistence, the natural resources which have been injured, destroyed, or lost, without regard to the ownership or management of the resources.

(b) A claim for loss of profits or impairment of earning capacity due to loss of subsistence use of natural resources must be included as part of the claim under this section and must include the proof required under § 136.233.

In addition to the requirements of subparts A and B of this part, a claimant must provide—

(a) The identification of each specific natural resource for which compensation for loss of subsistence use is claimed;

(b) A description of the actual subsistence use made of each specific natural resource by the claimant;

(c) A description of how and to what extent the claimant's subsistence use was affected by the injury to or loss of each specific natural resource;

(d) A description of each effort made by the claimant to mitigate the claimant's loss of subsistence use; and

(e) A description of each alternative source or means of subsistence available to the claimant during the period of time for which loss of subsistence is claimed, and any compensation available to the claimant for loss of subsistence.

(a) The amount of compensation allowable is the reasonable replacement cost of the subsistence loss suffered by the claimant if, during the period of time for which the loss of subsistence is claimed, there was no alternative source or means of subsistence available.

(b) The amount of compensation allowable under paragraph (a) of this section must be reduced by—

(1) All compensation made available to the claimant to compensate for subsistence loss;

(2) All income which was derived by utilizing the time which otherwise would have been used to obtain natural resources for subsistence use; and

(3) Overheads or other normal expenses of subsistence use not incurred as a result of the incident.

(c) Compensation for a claim for loss of profits or impairment of earning capacity under § 136.219(b) is limited to that allowable under § 136.235.

A claim for net loss of revenue due to the injury, destruction, or loss of real property, personal property, or natural resources may be presented only by an appropriate claimant sustaining the loss. As used in this section and § 136.277, “revenue” means taxes, royalties, rents, fees, and net profit shares.

In addition to the requirements of Subparts A and B, a claimant must establish—

(a) The identification and description of the economic loss for which compensation is claimed, including the applicable authority, property affected, method of assessment, rate, and method and dates of collection;

(b) That the loss of revenue was due to the injury to, destruction of, or loss of real or personal property or natural resources;

(c) The total assessment or revenue collected for comparable revenue periods; and

(d) The net loss of revenue.

The amount of compensation allowable is the total net revenue actually lost.

(a) A claim for loss of profits or impairment of earning capacity due to the injury to, destruction of, or loss of real or personal property or natural resources may be presented by a claimant sustaining the loss or impairment. The claimant need not be the owner of the damaged property or resources to recover for lost profits or income.

(b) A claim for loss of profits or impairment of earning capacity that also involves a claim for injury to, or economic losses resulting from destruction of, real or personal property must be claimed under § 136.213.

(c) A claim for loss of profits or impairment of earning capacity that also involves a claim for loss of subsistence use of natural resources must be claimed under § 136.219.

In addition to the requirements of subparts A and B of this part, a claimant must establish the following:

(a) That real or personal property or natural resources have been injured, destroyed, or lost.

(b) That the claimant's income was reduced as a consequence of injury to, destruction of, or loss of the property or natural resources, and the amount of that reduction.

(c) The amount of the claimant's profits or earnings in comparable periods and during the period when the claimed loss or impairment was suffered, as established by income tax returns, financial statements, and similar documents. In addition, comparative figures for profits or earnings for the same or similar activities outside of the area affected by the incident also must be established.

(d) Whether alternative employment or business was available and undertaken and, if so, the amount of income received. All income that a claimant received as a result of the incident must be clearly indicated and any saved overhead and other normal expenses not incurred as a result of the incident must be established.

The amount of compensation allowable is limited to the actual net reduction or loss of earnings or profits suffered. Calculations for net reductions or losses must clearly reflect adjustments for—

(a) All income resulting from the incident;

(b) All income from alternative employment or business undertaken;

(c) Potential income from alternative employment or business not undertaken, but reasonably available;

(d) Any saved overhead or normal expenses not incurred as a result of the incident; and

(e) State, local, and Federal taxes.

A claim for net costs of providing increased or additional public services during or after removal activities, including protection from fire, safety, or health hazards, caused by a discharge of oil may be presented only by a State or a political subdivision of a State incurring the costs.

The amount of compensation allowable is the net cost of the increased or additional service provided by the State or political subdivision.

This subpart prescribes the requirements concerning designation of the source or sources of the discharge or threat of discharge and advertisement of these designations, including the procedures by which claims may be presented to the responsible party or guarantor.

As used in this subpart—

Advertisement means the dissemination of information, including but not limited to paid advertisements, that are reasonably calculated to advise the public how to present a claim.

Designated source means a source designated under § 136.305.

(a) When information of an incident is received, the source or sources of the discharge or threat are designated, where possible and appropriate. If the designated source is a vessel or facility, the responsible party and the guarantor, if known, are notified by telephone, telefax, or other rapid means of that designation. The designation will be confirmed by a written Notice of Designation.

(b) A Notice of Designation normally contains, to the extent known—

(1) The name of the vessel or facility designated as the source;

(2) The location, date, and time of the incident;

(3) The type of quantity of oil involved;

(4) The date of the designation;

(5) The procedures for accepting or denying the designation; and

(6) The name, address, telephone number, and, if available, telefax number of the responsible Federal official to whom further communication regrading the incident, advertisement of the incident, or denial of designation should be directed.

(a) Within five days after receiving a Notice of Designation under § 136.305, the responsible party or guarantor may deny the designation.

(b) A denial of designation must—

(1) Be in writing;

(2) Identify the Notice of Designation;

(3) Give the reasons for the denial and provide a copy of all supporting documents; and

(4) Be submitted to the official named in the Notice of Designation.

(c) A denial is deemed received on the date the denial is actually received by the official named in the Notice of Designation.

(a) The Director, NPFC, determines for each incident the type, geographic scope, frequency, and duration of advertisement required.

(b) In making the determination specified in paragraph (a) of this section, the Director, NPFC, may consider—

(1) The nature and extent of economic losses that have occurred or are likely to occur;

(2) The potential claimants who are likely to incur economic losses;

(3) The geographical area that is or will likely be affected;

(4) The most effective method of reasonably notifying potential claimants of the designation and procedures of submitting claims; and

(5) Relevant information or recommendations, if any, submitted by, or on behalf of, the responsible party or guarantor of the designated source.

(c) The Director, NPFC, provides the specific requirements for advertisement for each incident to the responsible party or guarantor of the designated source.

(d) If a responsible party or guarantor has not denied designation in accordance with § 136.307, the party or guarantor shall advertise, in accordance with the requirements of this subpart, the designation and the procedures by which claims may be presented. The advertisement must begin not later than 15 days after the date of the designation made under § 136.305.

(e) If there is no designation under § 136.305, if the source of the discharge or threat is a public vessel, or if the responsible party and guarantor of the source designated have denied the designation or failed to meet the requirements for advertisement in this section, the Director, NPFC, may advertise procedures for presenting claims.

Advertisement required by the Director, NPFC, will normally include one or more of the following:

(a) Paid advertisements in a newspaper or newspapers having general circulation in the area designated by the Director, NPFC.

(b) Notice posted in marinas, marine supply stores, bait and tackle shops, and other appropriate business establishments or public facilities in the area designated by the Director, NPFC.

(c) News releases to newspapers, radio stations, television stations, and cable services having general circulation in the area designated by the Director, NPFC.

(d) Other means approved by the Director, NPFC, under the circumstances of each case.

Each advertisement required by this subpart may be required to contain the following information or to indicate where this information may be contained:

(a) Location, date, and time of the incident.

(b) Geographical area affected, as determined by the FOSC or Director, NPFC.

(c) Type and quantity of oil involved.

(d) Name or other description of the source designated by the FOSC or Director, NPFC.

(e) Name of the responsible party and guarantor of the designated source.

(f) Name, address, telephone number, office hours, and work days of the person or persons to whom claims are to be presented and from whom claim information can be obtained.

(g) The procedures by which a claim may be presented.

(h) Other information required by the Director, NPFC, under the circumstances of each case.

(a) In general under the Oil Pollution Act of 1990 (33 U.S.C. 2701, et seq.), an owner or operator of a facility (as defined in § 137.10) that is the source of a discharge, or a substantial threat of discharge, of oil into the navigable waters or adjoining shorelines or the exclusive economic zone is liable for damages and removal costs resulting from the discharge or threat. However, if that person can demonstrate, among other criteria not addressed in this part, that they did not know and had no reason to know at the time of their acquisition of the real property on which the facility is located that oil was located on, in, or at the facility, the person may be eligible for the innocent landowner defense to liability under 33 U.S.C. 2703(d)(4). One element of the defense is that the person made all appropriate inquiries into the nature of the real property on which the facility is located before acquiring it. The purpose of this part is to prescribe standards and practices for making those inquiries.

(b) Under 33 U.S.C. 2703(d)(4)(E), this part does not apply to real property purchased by a non-governmental entity or non-commercial entity for residential use or other similar uses where a property inspection and a title search reveal no basis for further investigation. In those cases, the property inspection and title search satisfy the requirements of this part.

(c) This part does not affect the existing OPA 90 liability protections for State and local governments that acquire a property involuntarily in their functions as sovereigns under 33 U.S.C. 2703(d)(2)(B). Involuntary acquisition of properties by State and local governments fall under the provisions of 33 U.S.C. 2703(d)(2)(B), not under the all-appropriate-inquiries provision of 33 U.S.C. 2703(d)(4) and this part.

(a) Under 33 U.S.C. 2703(c)(1), persons specified in § 137.1(a), including environmental professionals, must report the incident as required by law if they know or have reason to know of the incident.

(b) This part does not limit or expand disclosure obligations under any Federal, State, tribal, or local law. It is the obligation of each person, including environmental professionals, conducting inquiries to determine his or her respective disclosure obligations under Federal, State, tribal, and local law and to comply with them.

(a) The following terms have the same definitions as in 33 U.S.C. 2701: damages; discharge; incident; liable or liability; oil; owner or operator; and removal costs.

(b) As used in this part—

Abandoned property means a property that, because of its general disrepair or lack of activity, a reasonable person could believe that there is an intent on the part of the current owners to surrender their rights to the property.

Adjoining property means real property the border of which is shared in part or in whole with that of the subject property or that would be shared in part or in whole with that of the property but for a street, road, or other public thoroughfare separating the properties.

Data gap means a lack of, or inability to, obtain information required by subpart B of this part despite good faith efforts by the environmental professional or persons specified in § 137.1(a), as appropriate, to gather the information under § 137.33.

Environmental professional means an individual who meets the requirements of § 137.25.

Facility means any structure, group of structures, equipment, or device (other than a vessel) which is used for one or more of the following purposes: exploring for, drilling for, producing, storing, handling, transferring, processing, or transporting oil. This term includes any motor vehicle, rolling stock, or pipeline used for one or more of these purposes.

Good faith means the absence of any intention to seek an unfair advantage or to defraud another party; an honest and sincere intention to fulfill one's obligations in the conduct or transaction concerned.

Institutional controls means non-engineered instruments, such as administrative and/or legal controls, that help to minimize the potential for human exposure to oil discharge and/or protect the integrity of a removal action.

Relevant experience means participation in the performance of all-appropriate-inquiries investigations, environmental site assessments, or other site investigations that may include environmental analyses, investigations, and remediation which involve the understanding of surface and subsurface environmental conditions and the processes used to evaluate these conditions and for which professional judgment was used to develop opinions regarding conditions indicative of the presence or likely presence of oil at the facility and the real property on which the facility is located.

Section 137.20 of this part refers to ASTM E 1527-05, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process. That document is available from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959. It is also available for inspection at the Coast Guard National Pollution Funds Center, Law Library, 4200 Wilson Boulevard, Suite 1000, Arlington, VA.

In order to make all appropriate inquiries, persons seeking to establish the liability protection under § 137.1(a) must conduct the inquiries and investigations as required in this part and ensure that the inquiries and investigations required to be made by environmental professionals are made.

The industry standards in ASTM E 1527-05, (Referenced in § 137.15) may be used to comply with the requirements set forth in §§ 137.45 through 137.85 of this part. Use of ASTM E 1527-05 for this purpose is optional and not mandatory.

(a) An environmental professional is an individual who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of the presence or likely presence of oil at a facility and the real property on which the facility is located sufficient to meet the objectives and performance factors in § 137.30(a) and (b).

(1) Such a person must—

(i) Hold a current Professional Engineer's or Professional Geologist's license or registration from a State, tribe, or U.S. territory (or the Commonwealth of Puerto Rico) and have the equivalent of 3 years of full-time relevant experience;

(ii) Be licensed or certified by the Federal government, a State, tribe, or U.S. territory (or the Commonwealth of Puerto Rico) to perform environmental inquiries under § 137.35 and have the equivalent of 3 years of full-time relevant experience;

(iii) Have a Baccalaureate or higher degree from an accredited institution of higher education in a discipline of engineering or science and the equivalent of 5 years of full-time relevant experience; or

(iv) Have the equivalent of 10 years of full-time relevant experience.

(2) An environmental professional should remain current in his or her field through participation in continuing education or other activities.

(3) The requirements for an environmental professional in this section do not preempt State professional licensing or registration requirements, such as those for a professional geologist, engineer, or site-remediation professional. Before commencing work, a person should determine the applicability of State professional licensing or registration laws to the activities to be undertaken as part of an inquiry under § 137.35(b).

(4) A person who does not qualify as an environmental professional under this section may assist in the conduct of all appropriate inquiries according to this part if the person is under the supervision or responsible charge of an environmental professional meeting the requirements of this section when conducting the inquiries.

(a) Objectives. This part is intended to result in the identification of conditions indicative of the presence or likely presence of oil at the facility and the real property on which the facility is located. In order to meet the objectives of this regulation, persons specified in § 137.1(a) and the environmental professional must seek to identify, through the conduct of the standards and practices in this subpart, the following types of information about the facility and the real property on which the facility is located:

(1) Current and past uses and occupancies of the facility and the real property on which the facility is located.

(2) Current and past uses of oil.

(3) Waste management and disposal activities that indicate presence or likely presence of oil.

(4) Current and past corrective actions and response activities that indicate presence or likely presence of oil.

(5) Engineering controls.

(6) Institutional controls, such as zoning restrictions, building permits, and easements.

(7) Properties adjoining or located nearby the facility and the real property on which the facility is located that have environmental conditions that could have resulted in conditions indicative of the presence or likely presence of oil at the facility and the real property on which the facility is located.

(b) Performance factors. In order to meet this part and to meet the objectives stated in paragraph (a) of this section, the persons specified in § 137.1(a) or the environmental professional (as appropriate to the particular standard and practice) must—

(1) Gather the information that is required for each standard and practice listed in this subpart that is publicly available, is obtainable from its source within a reasonable time and cost, and can be reviewed practicably; and

(2) Review and evaluate the thoroughness and reliability of the information gathered in complying with each standard and practice listed in this subpart taking into account information gathered in the course of complying with the other standards and practices of this part.

(a) All appropriate inquiries must be conducted within 1 year before the date of acquisition of the real property on which the facility is located, as evidenced by the date of receipt of the documentation transferring title to, or possession of, the real property and must include:

(1) An inquiry by an environmental professional, as provided in § 137.35.

(2) The collection of information under § 137.40 by persons specified in § 137.1(a).

(b) The following components of the all appropriate inquiries must be conducted or updated within 180 days before the date of acquisition of the real property on which the facility is located:

(1) Interviews with past and present owners, operators, and occupants. See § 137.45.

(2) Searches for recorded environmental cleanup liens. See § 137.55.

(3) Reviews of Federal, State, tribal, and local government records. See § 137.60.

(4) Visual inspections of the facility, the real property on which the facility is located, and adjoining properties. See § 137.65.

(5) The declaration by the environmental professional. See § 137.35(d).

(c) All appropriate inquiries may include the results of and information contained in an inquiry previously conducted by, or on behalf of, persons specified in § 137.1(a) who are responsible for the inquiries for the facility and the real property on which the facility is located if—

(1) The information was collected during the conduct of an all-appropriate-inquiries investigation under this part.

(2) The information was collected or updated within 1 year before the date of acquisition of the real property on which the facility is located.

(3) The following components of the inquiries were conducted or updated within 180 days before the date of acquisition of the real property on which the facility is located:

(i) Interviews with past and present owners, operators, and occupants. See § 137.45.

(ii) Searches for recorded environmental cleanup liens. See § 137.55.

(iii) Reviews of Federal, State, tribal, and local government records. See § 137.60.

(iv) Visual inspections of the facility, the real property on which the facility is located, and the adjoining properties. See § 137.65.

(v) The declaration by the environmental professional. See § 137.35(d).

(4) Previously collected information is updated by including relevant changes in the conditions of the facility and the real property on which the facility is located and specialized knowledge, as outlined in § 137.70, of the persons conducting the all appropriate inquiries for the facility and the real property on which the facility is located, including persons specified in § 137.1(a) and the environmental professional.

(d) All appropriate inquiries may include the results of an environmental professional's report under § 137.35(c) that have been prepared by or for other persons if—

(1) The reports meet the objectives and performance factors in § 137.30(a) and (b); and

(2) The person specified in § 137.1(a) reviews the information and conducts the additional inquiries under §§ 137.70, 137.75, and 137.80 and updates the inquiries requiring an update under paragraph (b) of this section.

(e) To the extent there are data gaps that affect the ability of persons specified in § 137.1(a) and environmental professionals to identify conditions indicative of the presence or likely presence of oil, the gaps must be identified in the report under § 137.35(c)(2). In addition, the sources of information consulted to address data gaps should be identified and the significance of the gaps noted. Sampling and analysis may be conducted to develop information to address data gaps.

(f) Any conditions indicative of the presence or likely presence of oil identified as part of the all-appropriate-inquiries investigation should be noted in the report.

(a) Inquiries by an environmental professional must be conducted either by the environmental professional or by a person under the supervision or responsible charge of an environmental professional.

(b) The inquiry of the environmental professional must include the requirements in §§ 137.45 (interviews with past and present owners), 137.50 (reviews of historical sources), 137.60 (reviews of government records), 137.65 (visual inspections), 137.80 (commonly known or reasonably ascertainable information) and 137.85 (degree of obviousness of the presence or likely presence of oil). In addition, the inquiry should take into account information provided to the environmental professional by the person specified in § 137.1(a) conducting the additional inquiries under § 137.40.

(c) The results of the inquiry by an environmental professional must be documented in a written report that, at a minimum, includes the following:

(1) An opinion as to whether the inquiry has identified conditions indicative of the presence or likely presence of oil at the facility and the real property on which the facility is located.

(2) An identification of data gaps in the information developed as part of the inquiry that affect the ability of the environmental professional to identify conditions indicative of the presence or likely presence of oil at the facility and the real property on which the facility is located. The report must also indicate whether the gaps prevented the environmental professional from reaching an opinion regarding the identification of conditions indicative of the presence or likely presence of oil.

(3) The qualifications of the environmental professional.

(4) An opinion regarding whether additional appropriate investigation is necessary.

(d) The environmental professional must place the following statements in the written document identified in paragraph (c) of this section and sign the document: “[I, We] declare that, to the best of [my, our] professional knowledge, [I, we] meet the requirements under 33 CFR 137.25 for an environmental professional.” and “[I, We] have the specific qualifications based on education, training, and experience to assess the nature, history, and setting of a facility and the real property on which it is located. [I, We] have developed and conducted all appropriate inquiries according to the standards and practices in 33 CFR part 137.”

(a) Persons specified in § 137.1(a) must conduct inquiries in addition to those conducted by the environmental professional under § 137.35 and may provide the information associated with these additional inquiries to the environmental professional responsible for conducting the activities listed in § 137.35—

(1) As required by § 137.55 and if not otherwise obtained by the environmental professional, environmental cleanup liens against the facility and the real property on which it is located that are filed or recorded under Federal, State, tribal, or local law.

(2) As required by § 137.70, specialized knowledge or experience of the person specified in § 137.1(a).

(3) As required by § 137.75, the relationship of the purchase price to the fair market value of the facility and the real property on which the facility is located if the oil was not at the facility and the real property on which it is located.

(4) As required by § 137.80 and if not otherwise obtained by the environmental professional, commonly known or reasonably ascertainable information about the facility and the real property on which it is located.

(b) [Reserved]

(a) Interviews with owners, operators, and occupants of the facility and the real property on which the facility is located must be conducted for the purposes of achieving the objectives and performance factors of § 137.30(a) and (b).

(b) The inquiry of the environmental professional must include interviewing the current owner and occupant of the facility and the real property on which the facility is located. If the facility and the real property on which the facility is located has multiple occupants, the inquiry of the environmental professional must include interviewing major occupants, as well as those occupants likely to use, store, treat, handle or dispose of oil or those who have likely done so in the past.

(c) The inquiry of the environmental professional also must include, to the extent necessary to achieve the objectives and performance factors in § 137.30(a) and (b), interviewing one or more of the following persons:

(1) Current and past facility and real property managers with relevant knowledge of uses and physical characteristics of the facility and the real property on which the facility is located.

(2) Past owners, occupants, or operators of the facility and the real property on which the facility is located.

(3) Employees of current and past occupants of the facility and the real property on which the facility is located.

(d) In the case of inquiries conducted at abandoned properties where there is evidence of potential unauthorized uses or evidence of uncontrolled access, the environmental professional's inquiry must include an interview of at least one owner or occupant of a neighboring property from which it appears possible that the owner or occupant of the neighboring property could have observed use or other presence or likely presence of oil.

(a) Historical documents and records must be reviewed for the purposes of achieving the objectives and performance factors of § 137.30(a) and (b). Historical documents and records may include, but are not limited to, aerial photographs, fire insurance maps, building department records, chain of title documents, and land use records.

(b) Historical documents and records reviewed must cover a period of time as far back in the history of the real property to when the first structure was built or when it was first used for residential, agricultural, commercial, industrial, or governmental purposes. The environmental professional may exercise professional judgment in context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records.

(a) All appropriate inquiries must include a search for the existence of environmental cleanup liens against the facility and the real property on which the facility is located that are filed or recorded under Federal, State, tribal, or local law.

(b) All information collected by persons specified in § 137.1(a) rather than an environmental professional regarding the existence of environmental cleanup liens associated with the facility and the real property on which the facility is located may be provided to the environmental professional or retained by the applicable party.

(a) Federal, State, tribal, and local government records or databases of government records of the facility, the real property on which the facility is located, and adjoining properties must be reviewed for the purposes of achieving the objectives and performance factors of § 137.30(a) and (b).

(b) With regard to the facility and the property on which the facility is located, the review of Federal, State, and tribal government records or databases of the government records and local government records and databases of the records should include—

(1) Records of reported oil discharges present, including site investigation reports for the facility and the real property on which the facility is located;

(2) Records of activities, conditions, or incidents likely to cause or contribute to discharges or substantial threat of discharges of oil, including landfill and other disposal unit location records and permits, storage tank records and permits, hazardous waste handler and generator records and permits, Federal, tribal and State government listings of sites identified as priority cleanup sites, and spill reporting records;

(3) Comprehensive Environmental Response, Compensation, and Liability Information System (CERCLIS) records;

(4) Public health records;

(5) Emergency Response Notification System records;

(6) Registries or publicly available lists of engineering controls; and

(7) Registries or publicly available lists of institutional controls, including environmental land use restrictions, applicable to the facility and the real property on which the facility is located.

(c) With regard to nearby or adjoining properties, the review of Federal, State, tribal, and local government records or databases of government records should include the identification of the following:

(1) Properties for which there are government records of reported discharges or substantial threat of discharges of oil. Such records or databases containing such records and the associated distances from the facility and the real property on which the facility is located for which such information should be searched include the following:

(i) Records of National Priorities List (NPL) sites or tribal- and State-equivalent sites (one mile).

(ii) Resource Conservation and Recovery Act (RCRA) properties subject to corrective action (one mile).

(iii) Records of Federally-registered, or State-permitted or -registered, hazardous waste sites identified for investigation or remediation, such as sites enrolled in State and tribal voluntary cleanup programs and tribal- and State-listed brownfield sites (one-half mile).

(iv) Records of leaking underground storage tanks (one-half mile).

(2) Properties that previously were identified or regulated by a government entity due to environmental concerns at the facility and the real property on which the facility is located. The records or databases containing the records and the associated distances from the facility and the real property on which the facility is located for which the information should be searched include the following:

(i) Records of delisted NPL sites (one-half mile).

(ii) Registries or publicly available lists of engineering controls (one-half mile).

(iii) Records of former CERCLIS sites with no further remedial action notices (one-half mile).

(3) Properties for which there are records of Federally-permitted, State-permitted or -registered, or tribal-permitted or -registered waste management activities. The records or databases that may contain the records include the following:

(i) Records of RCRA small quantity and large quantity generators (adjoining properties).

(ii) Records of Federally-permitted, State-permitted or -registered, or tribal-permitted landfills and solid waste management facilities (one-half mile).

(iii) Records of registered storage tanks (adjoining property).

(4) A review of additional government records with regard to sites identified under paragraphs (c)(1) through (c)(3) of this section may be necessary in the judgment of the environmental professional for the purpose of achieving the objectives and performance factors of §§ 137.30(a) and (b).

(d) The search distance from the real property boundary for reviewing government records or databases of government records listed in paragraph (c) of this section may be modified based upon the professional judgment of the environmental professional. The rationale for the modifications must be documented by the environmental professional. The environmental professional may consider one or more of the following factors in determining an alternate appropriate search distance—

(1) The nature and extent of a discharge.

(2) Geologic, hydrogeologic, or topographic conditions of the property and surrounding environment.

(3) Land use or development densities.

(4) The property type.

(5) Existing or past uses of surrounding properties.

(6) Potential migration pathways (e.g., groundwater flow direction, prevalent wind direction).

(7) Other relevant factors.

(a) For the purpose of achieving the objectives and performance factors of § 137.30(a) and (b), the inquiry of the environmental professional must include the following:

(1) A visual on-site inspection of the facility and the real property on which the facility is located, and the improvements at the facility and real property, including a visual inspection of the areas where oil may be or may have been used, stored, treated, handled, or disposed. Physical limitations to the visual inspection must be noted.

(2) A visual inspection of adjoining properties, from the subject real property line, public rights-of-way, or other vantage point (e.g., aerial photography), including a visual inspection of areas where oil may be or may have been stored, treated, handled or disposed. A visual on-site inspection is recommended, though not required. Physical limitations to the inspection of adjacent properties must be noted.

(b) Except as in paragraph (c) of this section, a visual on-site inspection of the facility and the real property on which the facility is located must be conducted.

(c) An on-site inspection is not required if an on-site visual inspection of the facility and the real property on which the facility is located cannot be performed because of physical limitations, remote and inaccessible location, or other inability to obtain access to the facility and the real property on which the facility is located after good faith efforts have been taken to obtain access. The mere refusal of a voluntary seller to provide access to the facility and the real property on which the facility is located is not justification for not conducting an on-site inspection. The inquiry of the environmental professional must include—

(1) Visually inspecting the facility and the real property on which the facility is located using another method, such as aerial imagery for large properties, or visually inspecting the facility and the real property on which the facility is located from the nearest accessible vantage point, such as the property line or public road for small properties;

(2) Documenting the efforts undertaken to obtain access and an explanation of why such efforts were unsuccessful; and

(3) Documenting other sources of information regarding the presence or likely presence of oil at the facility and the real property on which the facility is located that were consulted according to § 137.30(a). The documentation should include comments, if any, by the environmental professional on the significance of the failure to conduct a visual on-site inspection of the facility and the real property on which the facility is located with regard to the ability to identify conditions indicative of the presence or likely presence of oil at the facility and the real property.

(a) For the purpose of identifying conditions indicative of the presence or likely presence of oil at the facility and the real property on which the facility is located, persons specified in § 137.1(a) must take into account their own specialized knowledge of the facility and the real property on which the facility is located, the area surrounding the facility and the real property on which the facility is located, and the conditions of adjoining properties and their experience relevant to the inquiry.

(b) The results of all appropriate inquiries under § 137.33 must take into account the relevant and applicable specialized knowledge and experience of the persons specified in § 137.1(a) responsible for undertaking the inquiry.

(a) Persons specified in § 137.1(a) must consider whether the purchase price of the facility and the real property on which the facility is located reasonably reflects the fair market value of the facility and real property if oil was not present or likely present.

(b) If the persons conclude that the purchase price does not reasonably reflect the fair market value of that facility and real property if oil was not at the facility and the real property, they must consider whether or not the differential in purchase price and fair market value is due to the presence or likely presence of oil.

(a) Persons specified in § 137.1(a) and environmental professionals conducting an inquiry of a facility and the real property on which it is located on their behalf must take into account the information collected under §§ 137.45 through 137.80 in considering the degree of obviousness of the presence or likely presence of oil at the facility and the real property on which the facility is located.

(b) Persons specified in § 137.1(a) and environmental professionals conducting an inquiry of a facility and the property on which the facility is located on their behalf must take into account the information collected under §§ 137.45 through 137.80 in considering the ability to detect the presence or likely presence of oil by appropriate investigation. The report of the environmental professional should include an opinion under § 137.35(c)(4) regarding whether additional appropriate investigation is necessary.

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).

(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—

(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.

(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 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 self-insurer of vessels owned, operated or demise chartered by the responsible party, and as a financial guarantor for 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.

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.

(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 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 self-insurer 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 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.

(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.

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.

(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: Director National Pollution Funds Center, NPFC CV MS 7100, U.S. Coast Guard, 4200 Wilson Blvd., Suite 1000, Arlington, VA 20598-7100, 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 NPFC at the addresses in paragraph (a) of this section.

(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.

(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.

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

(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.

(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 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 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. 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 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 six-month 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 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 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 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.

(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.

(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 the operator of such a fleet is a self-insurer 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.

(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.

(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—

(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.

(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.

(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 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.

(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 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.

(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.

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

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)).

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)).

(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;

(ii) [Reserved]

(c) [Reserved]

This subchapter is intended to promote safety of life and property on Outer Continental Shelf (OCS) facilities, vessels, and other units engaged in OCS activities, protect the marine environment, and implement the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.), as amended by the Outer Continental Shelf Lands Act Amendments of 1978 (Pub. L. 95-372, 92 Stat. 629).

Unless otherwise stated, this subchapter applies to OCS facilities, vessels, and other units engaged in OCS activities as the term “OCS activities” is defined in § 140.10. This subchapter does not apply to pipelines and deepwater ports (as the term “deepwater port” is defined in section 3(10) of the Deepwater Port Act of 1974 (33 U.S.C. 1502)).

(a) Design and equipment requirements of this subchapter for OCS facilities, including mobile offshore drilling units in contact with the seabed of the OCS for exploration or exploitation of subsea resources, are in addition to the regulations and orders of the U.S. Geological Survey applicable to those facilities.

(b) Any apparent conflict between the application of any requirement of this subchapter and any regulation or order of the U.S. Geological Survey should immediately be brought to the attention of the Officer in Charge, Marine Inspection.

(c) This subchapter does not establish design requirements for fixed OCS facilities or regulate drilling or production equipment on any OCS facility or attending vessel, except for matters affecting navigation or workplace safety or health.

The Officer in Charge, Marine Inspection, may exempt any unit under construction from any requirements of this subchapter that would be impracticable or unreasonable to apply during construction or erection of the unit.

(a) Certain materials are incorporated by reference into this subchapter with the approval of the Director of the Federal Register in accordance with 5 U.S.C. 552(a). To enforce any edition other than the one listed in paragraph (b) of this section, notice of the change must be published in the Federal Register and the material made available to the public. All approved material is available for inspection at U.S. Coast Guard, Office of Compliance (G-MOC), 2100 Second Street, SW., Washington, DC 20593-0001 and at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. All approved material is available from the sources indicated in paragraph (b) of this section.

(b) The material approved for incorporation by reference in this subchapter and the sections affected are as follows:

As used in this subchapter:

Act means the Outer Continental Shelf Lands Act of 1953 (43 U.S.C. 1331 et seq.), as amended by the Outer Continental Shelf Lands Act Amendments of 1978 (Pub. L. 95-372).

Approved means approved by the Commandant, unless otherwise indicated.

Attending vessel means a vessel which is moored close to and readily accessible from an OCS facility for the purpose of providing power, fuel, or other services to the operation being conducted on the facility.

Commandant means Commandant of the Coast Guard or that person's authorized representative.

Development means those activities which take place following discovery of minerals in paying quantities, including, but not limited to, geophysical activity, drilling, and platform construction, and which are for the purpose of ultimately producing the minerals discovered.

District Commander means an officer who commands a Coast Guard District described in part 3 of this chapter or that person's authorized representative.

Exploration means the process of searching for minerals, including, but not limited to, (1) geophysical surveys where magnetic, gravity, seismic, or other systems are used to detect or imply the presence of such minerals, and (2) any drilling, whether on or off known geological structures, including the drilling of a well in which a discovery of oil or natural gas in paying quantities is made and the drilling of any additional delineation well after the discovery which is needed to delineate any reservoir and to enable the lessee to determine whether to proceed with development and production.

Fixed OCS facility means a bottom founded OCS facility permanently attached to the seabed or subsoil of the OCS, including platforms, guyed towers, articulated gravity platforms, and other structures.

Floating OCS facility means a buoyant OCS facility securely and substantially moored so that it cannot be moved without a special effort. This term includes tension leg platforms and permanently moored semisubmersibles or shipshape hulls but does not include mobile offshore drilling units and other vessels.

Investigating officer means a person assigned by the Commandant, a District Commander, or an Officer in Charge, Marine Inspection, to conduct an investigation of an accident, casualty, or other incident.

Manned facility means an OCS facility on which people are routinely accommodated for more than 12 hours in successive 24 hour periods.

Manned platform means a fixed OCS facility on which people are routinely accommodated for more than 12 hours in successive 24 hour periods.

Marine inspector means a person designated as such by an Officer in Charge, Marine Inspection, to perform inspections of units to determine whether or not the requirements of laws administered by the Coast Guard and of Coast Guard regulations are met.

Minerals includes oil, gas, sulphur, geopressured-geothermal and associated resources, and all other minerals which are authorized by an Act of Congress to be produced from “public lands” as defined in section 103 of the Federal Lands Policy and Management Act of 1976 (43 U.S.C. 1702(e)).

Minerals Management Service inspector or MMS inspector means an individual employed by the Minerals Management Service who inspects fixed OCS facilities on behalf of the Coast Guard to determine whether the requirements of this subchapter are met.

Mobile offshore drilling unit or MODU means a vessel, other than a public vessel of the United States, capable of engaging in drilling operations for exploration or exploitation of subsea resources.

Officer in Charge, Marine Inspection means a person who commands a Marine Inspection Zone described in Part 3 of this chapter and who is immediately responsible for the performance of duties with respect to inspections, enforcement, and administration of regulations governing units.

Operator means—(1) In the case of a vessel, a charterer by demise or any other person who is responsible for the operation, manning, victualing, and supplying of the vessel; or

(2) In the case of an OCS facility, the operator as defined in 30 CFR 250.2(gg).

Outer Continental Shelf or OCS means all submerged lands lying seaward and outside of the area of “lands beneath navigable waters” as defined in section 2(a) of the Submerged Lands Act (43 U.S.C. 1301(a)) and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.

OCS activity means any offshore activity associated with exploration for, or development or production of, the minerals of the Outer Continental Shelf.

OCS facility means any artificial island, installation, or other device permanently or temporarily attached to the subsoil or seabed of the Outer Continental Shelf, erected for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources. The term includes mobile offshore drilling units when in contact with the seabed of the OCS for exploration or exploitation of subsea resources. The term does not include any pipeline or deepwater port (as the term “deepwater port” is defined in section 3(10) of the Deepwater Port Act of 1974 (33 U.S.C. 1502)).

Owner means a person holding title to or, in the absence of title, other indicia of ownership of a unit; however, this does not include a person who holds indicia of ownership primarily to protect a security interest in the unit and does not participate in the management or operation of the unit.

Person means an individual, association, partnership, consortium, joint venture, private, public, or municipal firm or corporation, or a government entity.

Person in charge means the master or other individual designated as such by the owner or operator under § 146.5 of this subchapter or 46 CFR 109.107.

Personnel means individuals who are employed by leaseholders, permit holders, operators, owners, contractors, or subcontractors and who are on a unit by reason of their employment.

Production means those activities which take place after the successful completion of any means for the removal of minerals, including, but not limited to, such removal, field operations, transfer of minerals to shore, operation monitoring, maintenance, and workover.

Rebuilt means having had substantial alteration or reconstruction of the hull or principal structural component.

Standby vessel means a vessel meeting the requirements of Part 143, Subpart E, of this chapter and specifically designated in an Emergency Evacuation Plan under §§ 146.140 or 146.210 of this chapter to provide rapid evacuation assistance in the event of an emergency.

Unit means any OCS facility, vessel, rig, platform, or other vehicle or structure, domestic or foreign.

Unmanned facility means an OCS facility, other than a floating facility or mobile offshore drilling unit, which is not a manned facility even though it may be continuously serviced by an attending vessel.

Unmanned platform means a fixed, bottom-founded OCS facility which is not a manned facility even though it may be continuously serviced by an attending vessel.

Vessel means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.

(a) The use of alternate equipment or procedures for those specified in this subchapter may be permitted by an Officer in Charge, Marine Inspection, to the extent and upon conditions as will insure a degree of safety comparable to or greater than that provided by the minimum standards in this subchapter.

(b) Where equipment in this subchapter is required to be of an approved type, the equipment requires the specific approval of the Commandant. Approvals are published in the Federal Register and COMDTINST M16714.3 (Series) Equipment List, available from Commandant (G-MSE), U.S. Coast Guard, Washington, DC 20593-0001.

(c) Specifications for certain items required to be of an approved type are contained in 46 CFR Parts 160 through 164.

(a) Each District Commander is responsible for the administration and enforcement of the regulations in this subchapter within that person's assigned district.

(b) Under the general superintendence of the District Commander, the Officer in Charge, Marine Inspection, is delegated authority to administer and enforce the regulations in this subchapter.

(c) Authority delegated under this section may be redelegated as necessary by the delegate.

(a) Any person directly affected by an action or decision of an Officer in Charge, Marine Inspection, under the Act or the regulations in this subchapter may request reconsideration of that action or decision. If still dissatisfied, that person may appeal the action or decision of the Officer in Charge, Marine Inspection, within 30 days to the District Commander of the District in which the action was taken or the decision made. The District Commander issues a decision after reviewing the appeal submitted under this paragraph.

(b) Any person not satisfied with the decision of a District Commander may appeal that decision within 30 days to the Commandant, who issues a ruling after reviewing the appeal submitted under this paragraph. Rulings of the Commandant constitute final agency action.

(c) An appeal to the District Commander or Commandant:

(1) Must be made in writing, except in an emergency when an oral appeal may be accepted;

(2) Must be submitted to the District Commander of the District in which the action was taken or the decision made;

(3) Must describe the decision or action being appealed;

(4) Must state the reasons why the action or decision should be set aside or modified; and

(5) May contain any supporting documents and evidence that the appellant wishes to have considered.

(d) Pending determination of any appeal, the action or decision appealed remains in effect, unless suspended by the District Commander to whom the appeal was made or by the Commandant.

(a) Nothing in this subchapter shall be construed to prevent any interested party from seeking judicial review as authorized by law.

(b) Judicial review of the regulations in this subchapter, or any final ruling or order of the Commandant or that person's delegate pursuant to the Act or the regulations in this subchapter, is governed by the judicial review provisions of section 23 of the Act (43 U.S.C. 1349).

(a) Any person who fails to comply with:

(1) Any provision of the Act;

(2) Any regulation in this subchapter; or

(3) Any order issued under the Act or the regulations in this subchapter by the Commandant, a District Commander, or an Officer in Charge, Marine Inspection, after notice of the failure and after expiration of any reasonable period allowed for corrective action, shall be liable for a civil penalty for each day of the continuance of the failure.

(b) Any person who knowingly and willfully:

(1) Violates any provision of the Act;

(2) Violates any regulation in this subchapter designed to protect health, safety, or the environment;

(3) Violates any order of the Commandant, District Commander, or Officer in Charge, Marine Inspection, issued under the Act or the regulations in this subchapter that is designed to protect health, safety, or the environment;

(4) Makes any false statement, representation, or certification in any application, record, report, or other document filed or required to be maintained under the Act or the regulations in this subchapter;

(5) Falsifies, tampers with, or renders inaccurate any monitoring device or method of record required to be maintained under this Act or the regulations in this subchapter; or

(6) Reveals any data or information required to be kept confidential by the Act shall, upon conviction, be punished by a fine of not more than $100,000, or by imprisonment for not more than ten years, or both. Each day that a violation under paragraph (b)(1), (b)(2), or (b)(3) of this section continues, or each day that any monitoring device or data recorder remains inoperative or inaccurate because of any activity described in paragraph (b)(5) of this section, constitutes a separate violation.

(c) Whenever a corporation or other entity is subject to prosecution under paragraph (b) of this section, any officer or agent of the corporation or entity who knowingly and willfully authorized, ordered, or carried out the prescribed activity shall be subject to the same fines or imprisonment, or both, as provided for under paragraph (b) of this section.

(d) The penalties prescribed in this section are concurrent and cumulative and the exercise of one does not preclude the exercise of the others. Further, the penalties prescribed in this section are in addition to any other penalties afforded by any other law or regulation.

Apparent violations of the regulations in this subchapter are processed in accordance with subpart 1.07 of 33 CFR part 1 on civil and criminal penalty proceedings, except as follows:

(a) The District Commander refers civil penalty cases to the Secretary of the Interior, or that person's delegate, who, under the Act, assesses, collects, and compromises civil penalties.

(b) If a possible violation investigated by the Coast Guard carries both a civil and a criminal penalty, the District Commander determines whether to refer the case to the U.S. Attorney for criminal prosecution or to the Secretary of the Interior, or that person's delegate, for civil penalty proceedings.

(c) When the U.S. Attorney declines to institute criminal proceedings, the District Commander decides whether to refer the case to the Secretary of the Interior, or that person's delegate, for civil penalty proceedings or to close the case.

(a) Each unit engaged in OCS activities is subject to inspection by the Coast Guard.

(b) On behalf of the Coast Guard, each fixed OCS facility engaged in OCS activities is subject to inspection by the Minerals Management Service (MMS).

(c) Under the direction of the Officer in Charge, Marine Inspection, Coast Guard marine inspectors may inspect units engaged in OCS activities, and MMS inspectors may inspect fixed OCS facilities, to determine whether the requirements of this subchapter are met. These inspections may be conducted with or without advance notice at any time deemed necessary by the Officer in Charge, Marine Inspection, or MMS.

(d) As part of an inspection, a Coast Guard marine inspector or an MMS inspector may review records and require and observe the conduct of emergency drills and other tests and procedures as may be necessary to demonstrate to that person's satisfaction that the unit and its equipment are in full compliance with applicable Coast Guard regulations. The Coast Guard marine inspector or the MMS inspector consults with the person in charge of the unit before requiring a drill or other test or procedure to be conducted to minimize disruption of unit activities and risk to life or property.

(e) Coast Guard inspections of foreign units recognize valid international certificates accepted by the United States, including Safety of Life at Sea (SOLAS), Loadline, and Mobile Offshore Drilling Unit (MODU) Code certificates for matters covered by the certificates, unless there are clear grounds for believing that the condition of the unit or its equipment does not correspond substantially with the particulars of the certificate.

(f) Coast Guard marine inspectors conduct an initial inspection of each fixed OCS facility to determine whether the facility is in compliance with the requirements of this subchapter.

(a) The owner or operator of each fixed OCS facility shall ensure that the facility is inspected, at intervals not to exceed 12 months, to determine whether the facility is in compliance with the requirements of this subchapter.

(b) Except for initial inspections under § 140.101(f), inspections by Coast Guard marine inspectors and Minerals Management Service (MMS) inspectors do not meet the requirements for an inspection under paragraph (a) of this section.

(c) Except for initial inspections under § 140.101(f), the results of the inspection under paragraph (a) of this section must be recorded on form CG-5432. Forms CG-5432 may be obtained from the Officer in Charge, Marine Inspection. A copy of the completed form must be kept for 2 years after the inspection under paragraph (a) of this section is conducted and the form made available to the Coast Guard and MMS on request. For manned fixed OCS facilities, the copy of the completed form must be kept on the facility. For unmanned fixed OCS facilities, the copy of the completed form must be kept either at the nearest manned fixed OCS facility or, if there is no manned fixed OCS facility in the area, at the nearest field office of the owner or operator. In addition, the owner or operator must submit, to the appropriate MMS District office, a copy of each completed form CG-5432 that indicates outstanding deficiencies or hazards, within 30 days after completion of the inspection.

(a) Lifesaving and fire fighting equipment which is found defective during an inspection by a Coast Guard marine inspector or a Minerals Management Service (MMS) inspector and which, in the opinion of the inspector, cannot be satisfactorily repaired must be so mutilated in the presence of the inspector that it cannot be used for the purpose for which it was originally intended. Lifesaving and fire fighting equipment subsequently determined to be unrepairable must be similarly mutilated in the presence of the person making that determination.

(b) Any deficiency or hazard discovered during an inspection by a Coast Guard marine inspector or an MMS inspector is reported to the unit's owner or operator, who shall have the deficiency or hazard corrected or eliminated as soon as practicable and within the period of time specified by the inspector.

(c) Deficiencies and hazards discovered during an inspection of a fixed OCS facility under § 140.103(a) must be corrected or eliminated, if practicable, before the form CG-5432 is completed. Deficiencies and hazards that are not corrected or eliminated by the time the form is completed must be indicated on the form as “outstanding” and the form submitted to the appropriate MMS District office. Upon receipt of a form CG-5432 indicating outstanding deficiencies or hazards, MMS informs, by letter, the owner or operator of the fixed OCS facility of the deficiencies or hazards and the time period specified to correct or eliminate the deficiencies or hazards.

(d) For lifesaving and fire fighting equipment deficiencies on fixed OCS facilities that cannot be corrected before the submission of form CG-5432, the owner or operator must contact the appropriate MMS District Supervisor to request a time period for repair of the item. The owner or operator must include a description of the deficiency and the time period approved by MMS for correction of the deficiency in the comment section of form CG-5432.

(e) Where a deficiency or hazard remains uncorrected or uneliminated after the expiration of the time specified for correction or elimination, the Officer in Charge, Marine Inspection or MMS (for deficiencies or hazards discovered by MMS during an inspection of a fixed OCS facility), initiates appropriate enforcement measures.

Under the direction of the Officer in Charge, Marine Inspection, investigating officers investigate the following incidents occurring as a result of OCS activities:

(a) Death.

(b) Injury resulting in substantial impairment of any bodily unit or function.

(c) Fire which causes death, serious injury or property damage exceeding $25,000.

(d) Oil spillage exceeding two hundred barrels of oil in one occurrence during a thirty-day period.

(e) Other injuries, casualties, accidents, complaints of unsafe working conditions, fires, pollution, and incidents occurring as a result of OCS activities as the Officer in Charge, Marine Inspection, deems necessary to promote the safety of life or property or protect the marine environment.

(a) Insofar as practicable, investigations conducted pursuant to this subchapter shall follow the procedures of 46 CFR part 4.

(b) Representatives of the U.S. Geological Survey may participate in these investigations. This participation may include, but is not limited to:

(1) Participating in a joint on-scene investigation;

(2) Making recommendations concerning the scope of the investigation;

(3) Calling and examing witnesses; and

(4) Submitting or requesting additional evidence.

(c) Reports of investigations conducted under this subchapter shall be made available to parties to the investigation and the public upon completion of agency action.

This subpart prescribes rules governing restrictions on the employment of personnel on units engaged in OCS activities.

(a) This subpart applies to employment of personnel on units engaged in OCS activities, except as provided in paragraph (b) of this section.

(b) This subpart does not apply to employment of personnel on any:

(1) Vessel subject to the citizenship requirements of 46 U.S.C. 8103 for pilots, crew, and officers holding a valid license or MMC with officer endorsement when the vessel is transiting to or from an OCS facility or a United States port;

(2) Vessel subject to the citizenship requirements of 46 U.S.C. 7102 and 8103 for officers and crew on federally subsidized or documented vessels; or

(3) Unit over 50 percent of which is owned by one or more citizens of a foreign nation or with respect to which one or more citizens of a foreign nation have the right effectively to control, except to the extent and to the degree that the President determines that the government of such foreign nation or any of its political subdivisions has implemented, by statute, regulation, policy, or practice, a national manning requirement for equipment engaged in the exploration, development, or production of oil or gas in its offshore areas.

(c) The Commandant may, upon request or upon that person's own initiative, determine whether over 50 percent of a particular unit is owned by citizens of a foreign nation or whether citizens of a foreign nation have the right effectively to control the unit.

(d) In determining whether ownership or a right effectively to control exists, the Commandant may consider operational control of a unit, management responsibility, title, lease and charter arrangements, and financial interests.

(e) The owner or operator of any unit affected is notified of the Commandant's determination.

As used in this subpart:

Citizens of the United States means:

(1) In the case of an individual, one who is a native born, derivative, or fully naturalized citizen of the United States;

(2) In the case of a partnership, unincorporated company, or association, one in which 50% or more of the controlling interest is vested in citizens of the United States; or

(3) In the case of a corporation, one which is incorporated under the laws of the United States or of any State thereof.

Citizen of a foreign nation means:

(1) In the case of an individual, one who is not a citizen of the United States;

(2) In the case of a partnership, unincorporated company, or association, one in which more than 50% of the controlling interest is vested in citizens of a nation other than the United States; or

(3) In the case of a corporation, one which is incorporated under the laws of a nation other than the United States so long as (i) the title to a majority of the stock thereof is free from any trust or fiduciary obligation in favor of any citizen of the United States; (ii) the majority of the voting power in the corporation is not vested in any citizen of the United States; (iii) through any contract or understanding, the majority of the voting power may not be exercised directly or indirectly on behalf of any citizen of the United States; or (iv) by no other means, control of the corporation is conferred upon or permitted to be exercised by any citizen of the United States.

Resident alien means an alien lawfully admitted to the United States for permanent residence in accordance with section 101(a)(20) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. 1101(a)(20).

Transportation Worker Identification Credential or TWIC means an identification credential issued by the Transportation Security Administration according to 49 CFR part 1572.

(a) Each employer of personnel on any unit engaged in OCS activities that is subject to this part must employ, as members of the regular complement of the unit, only citizens of the United States or resident aliens except as provided by § 141.20.

(b) As used in paragraph (a) of this section, “regular complement of a unit” means those personnel necessary for the routine functioning of the unit, including marine officers and crew; industrial personnel on the unit, such as toolpushers, drillers, roustabouts, floor hands, crane operators, derrickmen, mechanics, motormen, and general maintenance personnel; and support personnel on the unit, such as cooks, stewards and radio operators. The term does not include specialists, professionals, or other technically trained personnel called in to handle emergencies or other temporary operations; extra personnel on a unit for training; and other personnel temporarily on a unit for specialized operations, such as construction, alteration, well logging, or unusual repairs or emergencies.

(c) The Officer in Charge, Marine Inspection, may determine whether a particular individual or position is part of the regular complement of a unit. A copy of the determination is provided to the owner or operator of the unit affected.

(a) An employer may request an exemption from the restrictions on employment in § 141.15 in order to employ persons other than citizens of the United States or resident aliens as part of the regular complement of the unit under the following circumstances:

(1) When specific contractual provisions or national registry manning requirements in effect on September 18, 1978 provide that a person other than a citizen of the United States or a resident alien is to be employed on a particular unit.

(2) When there is not a sufficient number of citizens of the United States or resident aliens qualified and available for the work.

(3) When the President determines with respect to a particular unit that the employment of only citizens of the United States or resident aliens is not consistent with the national interest.

(b) The request must be in writing, identify the provision of paragraph (a) of this section relied upon, and:

(1) If involving specific contractual provisions under paragraph (a)(1) of this section, list the persons claimed exempt and contain a copy of the contract;

(2) If involving persons without an H-2 Visa under paragraph (a)(2) of this section, list the persons or positions sought to be exempted; or

(3) If under paragraph (a)(3) of this section, identify the unit involved and contain any information in support of the claim.

(c) Requests must be submitted to the Commandant (G-MOC), U.S. Coast Guard Headquarters, 2100 2nd Street, SW., Washington, D.C. 20593.

(d) Upon receipt of a request under paragraph (a)(2) of this section, the Coast Guard seeks information from the Department of Labor concerning whether there are citizens of the United States or resident aliens qualified and available for work. If information is provided that citizens of the United States or resident aliens are qualified and available, the employer may be required to seek their employment before the request is approved.

(e) Upon receipt of a request under paragraph (a)(3) of this section and after consulting with other Federal agencies as appropriate, the Commandant forwards the request and the comments of the Coast Guard and other interested agencies to the President for determination.

(f) Upon approval by the President for request under paragraph (a)(3) of this section or by the Coast Guard for all other requests, the Coast Guard issues a certification of the exemption. A certification issued under paragraph (a)(2) of this section is valid for one year from the date of issuance.

(g) If, within 30 days of receipt by the Coast Guard of a request under paragraph (a)(2) of this section, the Coast Guard does not make a determination or advise the employer that additional time for consideration is necessary, the request is considered approved for a period of 90 days from the end of the 30 day period.

(h) A request need not be submitted for persons who are not citizens of the United States or resident aliens and who:

(1) Are employed under the national registry manning requirements exception in paragraph (a)(1) of this section; or

(2) Have been classified and admitted to the United States as temporary workers under 8 U.S.C. 1101(a)(15)(H)(ii) for work in a position for which admitted.

(a) For the purposes of this part, the employer may accept as sufficient evidence that a person is a citizen of the United States any one of the following documents and no others:

(1) A valid merchant mariner's document issued by the Coast Guard which shows the holder to be citizen of the United States.

(2) An original or certified copy of a birth certificate or birth registration issued by a state or the District of Columbia.

(3) A United States passport.

(4) A Certificate of Citizenship issued by the Immigration and Naturalization Service.

(5) A Certificate of Naturalization issued by a Naturalization Court.

(6) A letter from the Coast Guard issued under paragraph (d) of this section.

(b) If a person does not have one of the documents listed in paragraphs (a)(1) through (a)(6) of this section, that person may appear in person before an Officer in Charge, Marine Inspection, and submit one or more of the following documents which may be considered as evidence that the applicant is a citizen of the United States:

(1) A Certificate of Derivative Citizenship or a Certificate of Naturalization of either parent and a birth certificate of the applicant or other evidence satisfactorily establishing that the applicant was under 21 years of age at the time of the parent's naturalization.

(2) An original or certified copy of a birth certificate from a political jurisdiction outside the United States which demonstrates citizenship status.

(3) A Baptismal certificate or parish record recorded within one year after birth.

(4) A statement of a practicing physician certifying that the physician attended the birth and has a record showing the date on which the birth occurred.

(5) A commission, or evidence of commission, in the Armed Forces of the United States which shows the holder to be a citizen of the United States.

(6) A continuous discharge book or certificate of identification issued by the Coast Guard or the former Bureau of Marine Inspection, provided the document shows that the applicant produced satisfactory evidence of citizenship at the time the document was issued.

(7) A delayed certificate of birth issued under a state seal, provided there are no collateral facts indicating fraud in its procurement.

(8) A report of the Census Bureau showing the earliest available record of the applicant's age or birth.

(9) Affidavits of parents, relatives, or two or more responsible citizens of the United States, school records; immigration records; insurance policies; or other records which support the citizenship claim.

(c) In any case where doubt exists concerning evidence of citizenship submitted under paragraph (b) of this section, the Officer in Charge, Marine Inspection, may refer the matter to the United States Immigration and Naturalization Service for an advisory opinion.

(d) If the documents submitted under paragraph (b) of this section are determined by the Officer in Charge, Marine Inspection, to be sufficient evidence that the applicant is a citizen of the United States, the Coast Guard issues the applicant a letter acknowledging this determination.

For the purposes of this part, the employer may accept as sufficient evidence that a person is a resident alien any one of the following documents and no others:

(a) A valid merchant mariner's document issued by the Coast Guard.

(b) An alien registration receipt card issued by the Immigration and Customs Enforcement Agency certifying that the card holder has been admitted to the United States as an immigrant.

(c) A declaration of intention to become a citizen of the United States issued by the a Naturalization Court.

(d) A valid Transportation Worker Identification Credential.

(a) The employer of personnel subject to this subpart shall maintain, and make available to the Coast Guard upon request, a record identifying which of the documents listed in §§ 141.25 and 141.30 were relied upon for each employee. The record must consist of either a copy of the document or the following information on the document:

(1) For a merchant mariner's document, Transportation Worker Identification Credential, or a United States passport, the document's title and identification number.

(2) For a birth certificate or birth registration, the document's title and the employee's date and place of birth.

(3) For all other documents listed in §§ 141.25 and 141.30, the document's title and date and place of issuance.

(b) The employer of personnel subject to this subpart shall maintain a written list of the positions that make up the regular complement of the unit and the name and nationality of the individual filling each employee position. This list may be in summary form and any simple format.

This part is intended to promote workplace safety and health by establishing requirements relating to personnel, workplace activities and conditions, and equipment on the Outer Continental Shelf (OCS).

(a) Each holder of a lease or permit under the Act shall ensure that all places of employment within the lease area or within the area covered by the permit on the OCS are maintained in compliance with workplace safety and health regulations of this part and, in addition, free from recognized hazards.

(b) Persons responsible for actual operations, including owners, operators, contractors, and subcontractors, shall ensure that those operations subject to their control are conducted in compliance with workplace safety and health regulations of this part and, in addition, free from recognized hazards.

(c) “Recognized hazards”, in paragraphs (a) and (b) of this section, means conditions which are—

(1) Generally known among persons in the affected industry as causing or likely to cause death or serious physical harm to persons exposed to those conditions; and

(2) Routinely controlled in the affected industry.

(a) Any person may report a possible violation of any regulation in this subchapter or any other hazardous or unsafe working condition on any unit engaged in OCS activities to an Officer in Charge, Marine Inspection.

(b) After reviewing the report and conducting any necessary investigation, the Officer in Charge, Marine Inspection, notifies the owner or operator of any deficiency or hazard and initiates enforcement measures as the circumstances warrant.

(c) The identity of any person making a report under paragraph (a) of this section is not made available, without the permission of the reporting person, to anyone other than those officers and employees of the Department of Transportation who have a need for the record in the performance of their official duties.

This subpart prescribes requirements concerning personal protection on OCS facilities.

(a) Each holder of a lease or permit issued under the Act shall ensure that all personnel who are required by this subpart to use or wear personal protective equipment do so when within the lease area or the area covered by the permit.

(b) Persons responsible for actual operations shall ensure that all personnel engaged in the operation properly use or wear the personal protective equipment specified by this subpart.

(a) Personnel in areas where there is a hazard of falling objects or of contact with electrical conductors shall wear a head protector meeting the specifications of ANSI Z89.1, for the hazard involved.

(b) Each head protector must be marked with the information specified by ANSI Z89.1 for that type of protector and for the hazard involved.

(a) Personnel working in areas or engaged in activities where there is a reasonable probability for foot injury to occur shall wear footwear meeting the specifications of ANSI Z41, except when environmental conditions exist that present a hazard greater than that against which the footwear is designed to protect.

(b) Each pair of footwear must be marked with the information specified by ANSI Z41 for the type of footwear.

Personnel in areas where there are flying particles, molten metal, radiant energy, heavy dust, or hazardous materials shall wear clothing and gloves providing protection against the hazard involved.

(a) Personnel in an atmosphere specified under ANSI Z88.2, requiring the use of respiratory protection equipment shall wear the type of respiratory protection equipment specified in ANSI Z88.2 for that atmosphere.

(b) Before personnel enter an atmosphere specified under ANSI Z88.2 requiring the use of respiratory protection equipment, the persons listed in § 142.4 shall ensure that the personnel entering the atmosphere—

(1) Follow the procedures stated in section 6 of ANSI Z88.2 concerning the proper selection of a respirator and individual fit testing; and

(2) Are trained in the matters set forth in section 7 of ANSI Z88.2 concerning proper use of the equipment to be used and in the generally recognized short and long term harmful effects of exposure to the atmosphere involved.

(c) All respiratory protection equipment must be approved, used, and maintained in accordance with ANSI Z88.2.

(a) Except when moving from one location to another, personnel engaged in an activity where there is a hazard of falling 10 or more feet shall wear a safety belt or harness secured by a lanyard to a lifeline, drop line, or fixed anchorage.

(b) Each safety belt, harness, lanyard, lifeline, and drop line must meet the specifications of ANSI A10.14.

Personnel, when working in a location such that, in the event of a fall, they would likely fall into water, shall wear a work vest that meets the requirements of 33 CFR 146.20 or a life preserver that meets the requirements of 46 CFR 160.002, 160.005, or 160.055, except when using the safety belts and lifelines required by § 142.42.

Portable or fixed eyewash equipment providing emergency relief must be immediately available near the drill floor, mudrooms, and other areas where there is a reasonable probability that eye injury may occur.

This subpart applies to OCS facilities except mobile offshore drilling units.

(a) “Primary means of escape” shall be fixed stairways or fixed ladders of metal construction.

(b) “Secondary means of escape” shall be types approved for “primary means of escape” or portable, flexible ladders, knotted man ropes, and other devices satisfactory to the Officer in Charge, Marine Inspection.

(c) Manned OCS facilities shall be provided with at least two “primary means of escape” extending from the uppermost platform level that contains living quarters or that personnel occupy continuously, to each successively lower working level and to the water surface. Working levels without living quarters, shops, or offices in manned facility structural appendages, extensions, and installations that personnel occupy only occasionally shall be provided with one “primary means of escape” and, when necessary in the opinion of the Officer in Charge, Marine Inspection, one or more “secondary means of escape.”

(d) Unmanned OCS facilities shall be provided with at least one “primary means of escape” extending from the uppermost platform working level to each successively lower working level and to the water surface. When personnel are on board, unmanned facilities shall also be provided with one or more “secondary means of escape,” but not more than one will be required for every 10 persons extending from the uppermost working level of the facility to each successively lower working level and to the water surface, excluding facility appendages and installations, unless “secondary means of escape” from such appendages and installations are necessary in the opinion of the Officer in Charge, Marine Inspection.

(e) “Means of escape” shall be suitably accessible to personnel for rapid facility evacuation.

(f) When two or more “means of escape” are installed, at least two shall be located as nearly diagonally opposite each other as practicable unless such requirement is unreasonable or impracticable in the opinion of the Officer in Charge, Marine Inspection.

(a) Sufficient personnel landings shall be provided on each manned OCS facility to assure safe access and egress. When due to special construction personnel landings are not feasible, then suitable transfer facilities to provide safe access and egress shall be installed.

(b) The personnel landings shall be provided with satisfactory illumination. The minimum shall be one-foot candle of artificial illumination as measured at the landing floor and guards and rails.

(a) Except for helicopter landing decks which are provided for in paragraph (b) of this section, and areas not normally occupied, the unprotected perimeter of all floor or deck areas and openings shall be rimmed with guards and rails or wire mesh fence. The guard rail or fence shall be at least 42 inches high. The two intermediate rails shall be so placed that the rails are approximately evenly spaced between the guard rail and the floor or deck area: Provided, That if a toe board is installed then one of the intermediate rails may be omitted and the other rail placed approximately half way between the top of the toe board and the top guard rail.

(b) The unprotected perimeter of the helicopter landing deck shall be protected with a device of sufficient strength and size as to prevent any person from falling from such deck.

(c) Each catwalk and each stairway shall be provided with a suitable guard rail or rails, as necessary.

(a) Before construction is started on a proposed floating OCS facility, the owner or operator of the facility must submit to the Coast Guard for approval all plans and information listed in subpart C of 46 CFR part 107 which relate to the facility. All plans and information must be submitted according to the procedures in that subpart.

(b) The facility must comply with the requirements of subchapters F (Marine Engineering) and J (Electrical Engineering) of 46 CFR chapter I and 46 CFR part 108 (Design and Equipment). Where unusual design or equipment needs make compliance impracticable, alternative proposals that provide an equivalent level of safety may be accepted. These requirements do not apply to production systems on the facility.

(c) The Officer in Charge, Marine Inspection, determines whether a floating OCS facility meets the requirements of paragraph (b) of this section and issues a certificate of inspection for each facility which meets these requirements. Inspection of the facility may be required as part of this determination.

This subpart applies to mobile offshore drilling units when engaged in OCS activities.

Any mobile offshore drilling unit built before, under construction on, or contracted for prior to April 5, 1982 is not required to meet the design requirements of this subpart until the unit is rebuilt. Until rebuilt, the unit must continue to comply with the design requirements applicable to the unit on April 4, 1982.

Each mobile offshore drilling unit that is documented under the laws of the United States or not documented under the laws of any nation must comply with the design, equipment, and inspection requirements of 46 CFR parts 107 and 108 in order to engage in OCS activities.

Each mobile offshore drilling unit that is documented under the laws of a foreign nation must, when engaged in OCS activities, comply with one of the following:

(a) The design and equipment standards of 46 CFR part 108.

(b) The design and equipment standards of the documenting nation if the standards provide a level of safety generally equivalent to or greater than that provided under 46 CFR part 108.

(c) The design and equipment standards for mobile offshore drilling units contained in the International Maritime Organization (IMO, formerly Inter-Governmental Maritime Consultative Organization or IMCO) (IMO) Code for Construction and Equipment of Mobile Offshore Drilling Units (IMO Assembly Resolution A.414(XI)) which has been incorporated by reference.

(a) The Officer in Charge, Marine Inspection, determines whether a mobile offshore drilling unit which does not hold a valid Coast Guard Certificate of Inspection meets the requirements of §§ 143.205 or 143.207 relating to design and equipment standards and issues a letter of compliance for each unit which meets the requirements. Inspection of the unit may be required as part of this determination.

(b) A letter of compliance issued under paragraph (a) of this section is valid for one year or until the MODU departs the OCS for foreign operations, whichever comes first.

(c) The owner or operator of a foreign mobile offshore drilling unit requiring a letter of compliance examination must pay the fee prescribed in 46 CFR 2.10-130.

This subpart applies to all vessels engaged in OCS activities except mobile offshore drilling units.

(a) Vessels, including foreign vessels, which would be subject to the requirements of subchapter E of 46 CFR chapter I concerning load lines when arriving at or proceeding to sea from any port or place within the United States must comply with those requirements when engaged in activities on the OCS.

(b) Load line certificates and load line exemption certificates issued or accepted under subchapter E of 46 CFR chapter I are accepted as evidence of compliance with paragraph (a) of this section.

This subpart applies only to standby vessels meeting the requirements of this subpart and specifically designated in an Emergency Evacuation Plan (EEP) required by §§ 146.140 or 146.210 of this chapter to provide rapid evacuation assistance in the event of an emergency.

Standby vessels must meet the following:

(a) Have a valid certificate of inspection issued in compliance with Subchapters H, I, or T of 46 CFR Chapter I.

(b) Be capable of carrying and providing shelter for 100 per cent of the number of persons on the most populated facility that the standby vessel is designated to assist. Crew spaces may be used to meet the requirements of this section.

(c) Provide bunks or aircraft type reclining seats for 10 per cent of the number of persons on the most populated facility that the standby vessel is designated to assist. Crew spaces may be used to meet the requirements of this section.

(d) Not carry or store goods, supplies, and equipment on the deck of the standby vessel or in other locations that may hinder the vessel's ability to render assistance to the facility that the vessel is designated to assist.

(e) Not carry or store any hazardous material.

(a) Standby vessels must have, at least, the following equipment:

(1) Multiple propellers or propulsion devices.

(2) Two searchlights.

(3) For vessels certificated under Subchapter H of 46 CFR Chapter I, a line throwing appliance that meets the requirements in 46 CFR 75.45.

(4) For vessels certificated under subchapters I or T of 46 CFR chapter I, a line throwing appliance that meets the requirements of 46 CFR 94.45.

(5) A Stokes or comparable litter.

(6) One blanket for each person on the most populated facility that the standby vessel is designated to assist.

(7) Means for safely retrieving persons, including injured or helpless persons, from the water. The means of retrieval must be demonstrated to the satisfaction of the Officer in Charge, Marine Inspection.

(8) A scramble net that can be rigged on either side of the standby vessel.

(9) A minimum of four Coast Guard approved ring life buoys, each equipped with 15 fathoms of line.

(10) An immersion suit approved by the Coast Guard under 46 CFR 160.171, or a buoyant suit meeting Supplement A of ANSI/UL-1123-1987 and approved under 46 CFR 160.053, for each member of the standby vessel's crew when the standby vessel operates north of 32 degrees north latitude in the Atlantic Ocean or north of 35 degrees north latitude in all other waters.

(11) Two boat hooks.

(12) A fire monitor with a minimum flow rate of, at least, 500 gallons per minute.

(13) One two-way radio capable of voice communications with the OCS facility, helicopters or other rescue aircraft, rescue boats, and shore side support personnel.

(14) Floodlights to illuminate the personnel and boat retrieval area, the scramble net when deployed, and the water around the personnel retrieval and scramble net deployment areas.

(15) A copy of “The Ship's Medicine Chest and Medical Aid at Sea”, DHHS Publication No. (PHS) 84-2024, available from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.

(16) An industrial first aid kit sized for 50 percent of the number of persons on the most populated facility that the standby vessel is designated to assist.

(17) Coast Guard approved life preservers for 50 percent of the number of persons on the most populated facility that the standby vessel is designated to assist.

(b) Equipment required by paragraph (a) of this section must be to the satisfaction of the Officer in Charge, Marine Inspection.

Standby vessels must be crewed in accordance with their certificate of inspection for 24 hour operation. The Officer in Charge, Marine Inspection, may require the crew to be augmented, as necessary, to provide for maneuvering the standby vessel, for lookouts, for rigging and operating retrieval equipment, and for caring for survivors.

Each manned platform shall be provided with at least two approved life floats. The life floats shall have sufficient capacity to accommodate all persons present at any one time.

The life floats shall be distributed in accessible locations and mounted on the outboard sides of the working platform in such a manner as to be readily launched.

(a) Each lifefloat shall be provided with a painter. This painter shall be a manila rope not less than 23/4 inches in circumference and of a length not less than three times the distance from the deck where the lifefloat is stowed to the low water line. Alternatively, the painter may be of other material provided it has equal strength to the size of manila rope specified and is not less than 1/2 inch in diameter.

(b) Each life float must have a water light of an approved automatic electric type constructed in accordance with 46 CFR Subpart 161.010, except a water light constructed in accordance with former 46 CFR Subpart 161.001 that was installed before January 1, 1972, may be retained in an existing installation as long as it is maintained in good condition. The water light must be attached to the life float by a 12-thread manila or equivalent synthetic lanyard not less than 2 meters (6 feet) nor more than 4 meters (12 feet) in length. The water light must be mounted on a bracket so that when the life float is launched, the water light will pull free of the bracket.

(c) Two paddles shall be provided for each life float. The paddles shall not be less than five feet nor more than six feet long. The paddles shall be stowed in such a way that they will be readily accessible from either side of the life float when in the water.

(a) Approved lifeboats, approved life rafts or approved inflatable life rafts may be used in lieu of approved life floats for either all or part of the capacity required. When either lifeboats or life rafts are used approved means of launching will be required. Inflatable life rafts, when used, shall be distributed and mounted as required for life floats under § 144.01-5.

(b) The equipment required for a lifeboat is a bailer, boat hook, bucket, hatchet, lantern, life line, two life preservers, matches, full complement of oars and steering oar, painter, plug, and rowlocks, of the same type, kind, and character as required for lifeboats carried on vessels engaged in navigating bays, sounds, and lakes other than the Great Lakes, and rivers.

(c) The equipment required for a life raft is a boat hook, life line (if not a Type A life raft), full complement of oars and steering oar, painter, and rowlocks of the same type, kind, and character as required for life rafts carried on cargo and miscellaneous vessels navigating on bays, sounds, and lakes other than the Great Lakes.

(d) Inflatable liferafts shall be approved by the Coast Guard under approval series 160.151. An approved “Limited Service” or “Ocean Service” liferaft installed on board a platform before May 9, 1997, may continue to be used to meet the requirements of this section provided it is maintained in good and serviceable condition.

(a) An approved life preserver shall be provided for each person on a manned platform. The life preservers shall be located in easily accessible places.

(b) All kapok and fibrous glass life preservers which do not have plastic-covered pad inserts shall be removed from service.

(c) Each life preserver carried on a manned platform must have a personal flotation device light that is approved under Subpart 161.012 of 46 CFR Part 161. Each light must be securely attached to the front shoulder area of the life preserver.

(d) Each life preserver carried on a manned platform must have at least 200 sq. cm (31 sq. in.) of retroreflective material attached on its front side, at least 200 sq. cm on its back side, and at leat 200 sq. cm of material on each of its reversible sides. The material must be Type I material that is approved under 46 CFR 164.018. The material attached on each side of a life preserver must be divided equally between the upper quadrants of the side, and the material in each quadrant must be attached as closely as possible to the shoulder area of the life preserver.

(a) Each manned platform must have at least four approved ring life buoys constructed in accordance with 46 CFR Subpart 160.050; except ring life buoys approved under former 46 CFR Subpart 160.009 may be used as long as they are in good and serviceable condition. One ring life buoy must be placed on a suitable rack on each side of a manned platform in an accessible place. The ring life buoy must always be capable of being cast loose and may not be permanently secured in any way.

(b) Each ring life buoy must have a water light of an approved automatic electric type constructed in accordance with 46 CFR Subpart 161.010. A water light constructed in accordance with former 46 CFR Subpart 161.001 that was installed before January 1, 1972 may be retained in an existing installation as long as it is maintained in good condition. The water light must be attached to the ring life buoy by a 12-thread manila or equivalent synthetic lanyard not less than 1 meter (3 feet) nor more than 2 meters (6 feet) in length. The water light must be mounted on a bracket near the ring life buoy so that when the ring life buoy is cast loose, the water light will pull free of the bracket.

On each manned platform a first-aid kit approved by the Commandant or the U.S. Bureau of Mines shall be provided and kept in the custody of the person in charge.

On each manned platform a Stokes litter, or other suitable safety litter capable of being safely hoisted with an injured person, shall be provided and kept in an accessible place.

On manned platforms means of communication by radio and/or wire telephone shall be provided for contacting the shore or vessels in the vicinity for aid in the event of an emergency.

(a) Except as allowed in paragraph (b) of this section, no person may be on an unmanned platform unless the following lifesaving equipment is readily accessible on the platform:

(1) A life preserver or a Type I—Personal flotation device, listed in Table 1, for each person.

(2) An approved ring life buoy (Type IV PFD) for every two persons, but no more than four devices are required. Each ring life buoy must be of a type constructed in accordance with 46 CFR subpart 160.050; except a ring life buoy that was approved under former 46 CFR subpart 160.009 may be used as long as it is in good and serviceable condition.

(3) Each ring life buoy under paragraph (a)(2) of this section must have an approved automatic electric water light that is attached as described in § 144.01-25(b).

(b) The ring life buoys required in paragraph (a)(2) of this section may be kept on a manned vessel that remains alongside the platform if there is no available space to keep them on the platform.

Any lifesaving equipment on an unmanned platform that is not required in § 144.10-1 must meet the standards contained in Subpart 144.01 of this part.

This subpart applies to each MODU engaged in OCS activities that is documented under the laws of a foreign nation.

Each foreign MODU must meet the requirements of § 144.20-5 of this chapter, except as follows:

(a) Exposure suits (immersion suits, survival suits, etc.) approved by the nation under which the MODU is documented may be used in lieu of suits approved under 46 CFR 160.071, provided that they are accepted by the Commandant as providing equivalent thermal protection to the wearer. (Requests for acceptance of such suits should be sent to Commandant, U.S. Coast Guard, (G-MSE), Washington, DC 20593-0001, along with technical data supporting the thermal performance of the suits.)

(b) Personal flotation device lights approved by the nation under which the MODU is documented may be used in lieu of lights approved under 46 CFR 161.012.

The provisions of this subpart apply to OCS facilities except mobile offshore drilling units.

(a) The owner or operator, or the agent of either of them, shall designate by title and in order of succession the persons on each OCS facility who shall be the “person in charge.”

(b) In case an emergency arises, nothing in the regulations in this subchapter shall be so construed as preventing the person in charge from pursuing the most effective action in that person's judgement for rectifying the conditions causing the emergency.

(a) The owner or operator of each OCS facility not in operation before April 5, 1982 shall, at least 30 days before the date on-site construction of the facility is expected to commence, notify the District Commander for the area in which the facility will be located of:

(1) The position in which the facility will be operated;

(2) The designation assigned to the facility for identification under 30 CFR 250.37;

(3) The date when operation of the facility is expected to commence; and

(4) The date when the facility is expected to be available for inspection by the Coast Guard.

(b) The information required in paragraph (a) of this section may be submitted together with a need not repeat information submitted in connection with the application and notice requirements in 33 CFR part 67 for aids to navigation on the Outer Continental Shelf.

(a) The emergency equipment provided, regardless of whether or not required by this subchapter, shall be maintained in good condition at all times. Good operating practices require replacement of expended equipment, as well as periodic renewal of those items which have a limited period of effectiveness.

(b) Each personal flotation device light that has a non-replaceable power source must be replaced on or before the expiration date of the power source.

(c) Each replaceable power source for a personal flotation device light must be replaced on or before its expiration date and the light must be replaced when it is no longer serviceable.

(a) Types of approved work vests. Each buoyant work vest carried under the permissive authority of this section must be approved under—

(1) 46 CFR 160.053; or

(2) 46 CFR 160.077 as a commercial hybrid PFD.

(b) Use. Approved buoyant work vests are considered to be items of safety apparel and may be carried aboard OCS facilities to be worn by persons employed thereon when working near or over the water. The use and control of such vests shall be under the supervision of the person in charge of the facility. When carried, such vests shall not be accepted in lieu of any portion of the required number of approved life preservers and shall not be substituted for the approved life preservers required to be worn during drills and emergencies.

(c) Stowage. The work vests shall be stowed separately from the regular stowage of approved life preservers. The location for the stowage of work vests shall be such as not to be easily confused with that for approved life preservers.

(d) Inspections. Each work vest shall be subject to examination by a marine inspector to determine its serviceability. If found to be satisfactory, it may be continued in service, but shall not be stamped by a marine inspector with a Coast Guard stamp. If a work vest is found not to be in a serviceable condition, then such work vest shall be removed from the OCS facility. If a work vest is beyond repair, it shall be destroyed or mutilated in the presence of a marine inspector so as to prevent its continued use as a work vest.

(e) Additional requirements for hybrid work vests. Commercial hybrid PFD's must, in addition to the other requirements in this section, be—

(1) Used, stowed, and maintained in accordance with—

(i) The procedures set out in the manual required for these devices by 46 CFR 160.077-29; and

(ii) Any limitation(s) marked on them; and

(2) Of the same or similar design and have the same method of operation as each other hybrid PFD carried on board.

(a) The owner, operator, and person in charge of an OCS facility shall ensure that the Coast Guard is notified as soon as possible after a casualty occurs, and by the most rapid means available, of each casualty involving the facility which results in:

(1) Death; or

(2) Injury to 5 or more persons in a single incident.

(b) The owner, operator, and person in charge shall ensure that the Coast Guard is notified promptly of each casualty involving the facility which results in:

(1) Damage affecting the usefulness of primary lifesaving or firefighting equipment;

(2) Injury causing any person to be incapacitated for more than 72 hours;

(3) Damage to the facility exceeding $25,000 resulting from a collision by a vessel with the facility; or

(4) Damage to a floating OCS facility exceeding $25,000.

(c) The notice required by paragraphs (a) and (b) of this section must identify the person giving the notice and the facility involved and describe, insofar as practicable, the nature of the casualty and the extent of injury to personnel and damage to property.

(d) Damage costs referred to in paragraphs (b)(3) and (b)(4) of this section include the cost of labor and material to restore the facility to the service condition which existed prior to the casualty, but does not include the cost of salvage, cleaning, gas freeing, drydocking or demurrage of the facility.

(a) In addition to the notice of a casualty required by § 146.30, the owner, operator, or person in charge shall, within 10 days of the casualty, submit to the Officer in Charge, Marine Inspection, a written report which:

(1) Identifies the facility involved, its owner, operator, and person in charge;

(2) Describes the casualty, including the date and time;

(3) Describes the nature and extent of injury to personnel and damage to property;

(4) Describes the factors which may have contributed to causing the casualty;

(5) Gives the name, address, and phone number of persons involved in or witnessing the casualty; and

(6) Gives any desired comments, especially with respect to use of or need for emergency equipment.

(7) Includes information relating to alcohol or drug involvement as specified in the vessel casualty reporting requirements of 46 CFR 4.05-12.

(b) The written report required by paragraph (a) of this section may be—

(1) In narrative form if all appropriate parts of Form CG-2692 are addressed;

(2) On Form CG-2692 for casualties resulting in property damage, personnel injury, or loss of life.

(c) If filed or postmarked within 5 days of the casualty, the written report required by paragraph (a) of this section serves as the notice required by § 146.30(b).

Diving related casualties are reported in accordance with 46 CFR 197.484 and 197.486.

Oil pollution incidents involving an OCS facility are reported in accordance with §§ 135.305 and 135.307 of this chapter. Additional provisions concerning liability and compensation because of oil pollution are contained in Subchapter M of this chapter.

The provisions of this subpart apply only to manned OCS facilities except mobile offshore drilling units.

Each manned facility must have a general alarm system. When operated, this system shall be audible in all parts of the structure on which provided.

(a) The owner, the owner's agent, or the person in charge shall establish emergency signals to be used for calling the personnel to their emergency stations.

(b) The signal to man emergency stations shall be an intermittent signal on the general alarm system for not less than 10 seconds. The abandon facility signal shall be a continuous signal on the general alarm system.

The owner, the owner's agent, or the person in charge shall assign a person to each life float, lifeboat, life raft, or survival capsule who shall be responsible for launching it in event of an emergency.

(a) Emergency drills shall be conducted at least once each month by the person in charge of the manned facility. The drill shall be conducted as if an actual emergency existed. All personnel should report to their respective stations and be prepared to perform the duties assigned to them.

(b) The person in charge and conducting the emergency drill shall instruct the personnel as necessary to insure that all persons are familiar with their duties and stations.

(c) Emergency evacuation drills. The following emergency evacuation drills must be conducted:

(1) At least once a year, all the elements of the Emergency Evacuation Plan (EEP) under § 146.140 relating to the evacuation of personnel from the facility must be exercised through a drill or a series of drills. The drill(s) must exercise all of the means and procedures listed in the EEP for each circumstance and condition described in the EEP under § 146.140(d)(9).

(2) At least once a month, a drill must be conducted that demonstrates the ability of the facility's personnel to perform their duties and functions on the facility, as those duties and functions are described in the EEP. If a standby vessel is designated for that facility in the EEP, the vessel must be positioned as described in the EEP for an evacuation of that facility and the vessel's crew must demonstrate its ability to perform its duties and functions under the EEP.

(d) The date and time of such drills shall be reported in writing by the person in charge at the time of the drill to the owner who shall maintain this report record for a year and furnish it upon request to the Coast Guard. After one year, such records may be destroyed. When it is impossible to conduct emergency drills as required by this section during a particular calendar month, during the following month, a written report by the owner shall be submitted to the Officer in Charge, Marine Inspection, stating why the drills could not be conducted.

(a) The person in charge of each manned platform shall be responsible for and have prepared a station bill (muster list). This station bill must be signed by the person in charge. Copies shall be duly posted in conspicuous locations on the manned platform.

(b) The station bill shall set forth the special duties and duty stations of each member of the personnel for any emergency which involves the use or application of equipment required by this subchapter. In addition, it shall contain all other duties assigned and considered as necessary for the proper handling of other emergencies.

(c) The station bill shall contain the various signals to be used for calling the personnel to their emergency stations, and to abandon the facility.

(a) Markings shall be provided as considered necessary for the guidance of persons on manned facilities.

(b) The general alarm bell switches shall be identified by red letters at least one inch high with a contrasting background: “General Alarm.”

(c) All general alarm bells shall be identified by a sign at each bell in red letters at least one inch high with a sharp contrasting background: “General Alarm—When Bell Rings Go to Your Station.

(d) All life floats, lifeboats, life rafts, and survival capsules, together with paddles or oars, shall be conspicuously marked with a name or number of, or other inscription identifying, the facility on which placed. The number of persons allowed on each life float, lifeboat, or life raft shall be conspicuously marked thereon in letters and numbers 11/2 inches high. These numbers shall be placed on both sides of the life float, lifeboat, or life raft. Inflatable life rafts shall be marked in accordance with Subpart 160.051 of 46 CFR Part 160 and no additional markings are required.

(e) All life preservers and ring life buoys shall be marked with the name or number of, or other inscription identifying, the facility on which placed except those which accompany mobile crews to unmanned platforms may be marked with the operator's name and field designation.

(a) The operator of each manned OCS facility shall develop an Emergency Evacuation Plan (EEP) for the facility which addresses all of the items listed in paragraph (d) of this section. The EEP may apply to more than one facility, if the facilities are located in the same general geographic location and within the same Coast Guard Officer in Charge, Marine Inspection (OCMI) zone; if each facility covered by the EEP is specifically identified in the EEP; and if the evacuation needs of each facility are accommodated. The EEP must be submitted to the OCMI having jurisdiction over the facility, 30 days before placing the facility in operation. The OCMI reviews the EEP to determine whether all items listed in paragraph (d) of this section are addressed for each facility included in the EEP. If the OCMI determines that all items in paragraph (d) of this section are addressed, the OCMI stamps the EEP “APPROVED” and returns it, together with a letter indicating Coast Guard approval, to the operator. If the OCMI determines that any item is not addressed, the OCMI stamps the EEP “RETURNED FOR REVISION” and returns the EEP, together with an explanation of the EEP's deficiencies, to the operator.

(b) Once the EEP is approved under paragraph (a) of this section, the facility operator shall ensure that a copy of the EEP and the letter indicating Coast Guard approval is maintained on the facility.

(c) The EEP must be resubmitted for approval when substantive changes are made to the EEP. Only the pages affected by a change need be resubmitted if the EEP is bound in such a way as to allow old pages to be removed easily and new ones inserted. Substantive changes include, but are not limited to, installation of a new facility within the area covered by an EEP, relocation of a MODU, changes in the means or methods of evacuation, or changes in the time required to accomplish evacuation.

(d) The EEP must, at a minimum,

(1) Be written in language that is easily understood by the facility's operating personnel;

(2) Have a table of contents and general index;

(3) Have a record of changes;

(4) List the name, telephone number, and function of each person to be contacted under the EEP and state the circumstances in which that person should be contacted;

(5) List the facility's communications equipment, its available frequencies, and the communications schedules with shore installations, standby vessels, rescue aircraft, and other OCS facilities specified in the EEP;

(6) Identify the primary source of weather forecasting relied upon in implementing the EEP and state the frequency of reports when normal weather is forecasted, the frequency of reports when heavy weather is forecasted, and the method of transmitting the reports to the facility;

(7) Designate the individual on each facility covered by the EEP who is assigned primary responsibility for implementing the EEP;

(8) Designate those facility and shoreside support personnel who have the authority to advise the person in charge of the facility as to the best course of action to be taken and who initiate actions to assist facility personnel;

(9) Describe the recognized circumstances, such as fires or blowouts, and environmental conditions, such as approaching hurricanes or ice floes, in which the facility or its personnel would be placed in jeopardy and a mass evacuation of the facility's personnel would be recommended;

(10) For each of the circumstances and conditions described under paragraph (d)(9) of this section, list the pre-evacuation steps for securing operations, whether drilling or production, including the time estimates for completion and the personnel required;

(11) For each of the circumstances and conditions described under paragraph (d)(9) of this section, describe the order in which personnel would be evacuated, the transportation resources to be used in the evacuation, the operational limitations for each mode of transportation specified, and the time and distance factors for initiating the evacuation; and

(12) For each of the circumstances and conditions described under paragraph (d)(9) of this section, identify the means and procedures—

(i) For retrieving persons from the water during an evacuation;

(ii) For transferring persons from the facility to designated standby vessels, lifeboats, or other types of evacuation craft;

(iii) For retrieving persons from designated standby vessels, lifeboats, or other types of evacuation craft if used; and

(iv) For the ultimate evacuation of all persons on the facility to land, another facility, or other location where the evacuees would be reasonably out of danger under the circumstance or condition being addressed.

(e) The operator shall ensure that—

(1) All equipment specified in the EEP, whether the equipment is located on or off of the facility, is made available and located as indicated in the EEP and is designed and maintained so as to be capable of performing its intended function during an emergency evacuation;

(2) All personnel specified in the EEP are available and located as specified in the EEP and are trained in fulfilling their role under the EEP; and

(3) Drills are conducted in accordance with § 146.125(c).

(f) A complete copy of the EEP must be made available to the facility's operating personnel and a brief written summary of, or an oral briefing on, the EEP must be given to each person newly reporting on the facility.

(g) A copy of the EEP must be on board each standby vessel, if any, designated in the EEP and provided to all shoreside support personnel, if any, specified in the EEP.

This subpart applies to mobile offshore drilling units engaged in OCS activities.

(a) The owner of any mobile offshore drilling unit engaged in OCS activities shall, 14 days before arrival of the unit on the OCS or as soon thereafter as practicable, notify the District Commander for the area in which the unit will operate of:

(1) The unit's name, nationality, and designation assigned for identification under 30 CFR 250.37;

(2) The location and year that the unit was built;

(3) The name and address of the owner, and the owner's local representative, if any;

(4) Classification or inspection certificates currently held by the unit;

(5) The location and date that operations are expected to commence and their anticipated duration; and

(6) The location and date that the unit will be available and ready for inspection by the Coast Guard.

(b) Once a unit is located on the OCS, the owner of the unit shall notify the District Commander before relocating the unit.

(c) The information required in paragraphs (a) and (b) of this section may be provided by telephone or may be submitted together with, and need not repeat information contained in, applications and notices under 33 CFR part 67 for aids to navigation on the Outer Continental Shelf or 33 CFR part 135 for applications for certificate of financial responsibility.

Each mobile offshore drilling unit documented under the laws of the United States and each mobile offshore drilling unit that is not documented under the laws of any nation must comply with the operating standards of 46 CFR part 109 when engaged in OCS activities.

Each mobile offshore drilling unit that is documented under the laws of a foreign nation must, when engaged in OCS activities, comply with one of the following:

(a) The operating standards of 46 CFR part 109.

(b) The operating standards of the documenting nation if the standards provide a level of safety generally equivalent to or greater than that provided under 46 CFR part 109.

(c) The operating standards for mobile offshore drilling units contained in the International Maritime Organization (IMO, formerly Inter-Governmental Maritime Consultative Organization or IMCO) (IMO) Code for the Construction and Equipment of Mobile Offshore Drilling Units (IMO Assembly Resolution A. 414(XI)) which has been incorporated by reference and the requirements of 46 CFR Part 109 for matters not addressed by the Code.

(a) Except as otherwise provided in this section, the requirements applicable to Emergency Evacuation Plans (EEPs) on manned OCS facilities under § 146.140 are applicable to MODUs.

(b) An EEP must be submitted by—

(1) The holder of a lease or permit under the Act for each MODU within the area of the lease or the area covered by the permit; or

(2) The operator under 30 CFR 250.2(gg), if other than the holder of a lease or permit, for each MODU within the area in which the operator controls or manages operations.

(c) To avoid unnecessary duplication, the EEP may incorporate by reference pertinent sections of the MODU's operating manual required by 46 CFR 109.121.

(d) In complying with § 146.140(d)(7), the EEP must designate the master or person in charge of the MODU under 46 CFR 109.107 as the individual who is assigned primary responsibility for implementing the EEP, as it relates to that MODU.

This subpart applies to vessels engaged in OCS activities other than United States vessels already required to report marine casualties under Subpart 4.05 of 46 CFR part 4 or subpart D of 46 CFR part 109.

The owner, operator, or person in charge of a vessel engaged in OCS activities shall ensure that the notice of casualty requirements of § 146.30 and the written report requirements of § 146.35 are complied with whenever a casualty involving the vessel occurs which results in:

(a) Death;

(b) Injury to 5 or more persons in a single incident; or

(c) Injury causing any person to be incapacitated for more than 72 hours.

This subchapter prescribes regulations for the licensing, construction, design, equipment, and operation of deepwater ports under the Deepwater Port Act of 1974, as amended (33 U.S.C. 1501-1524) (the Act).

Unless otherwise specified, the owner of a deepwater port must ensure that the requirements of this subchapter are carried out at that port.

(a) Under delegations from the Secretary of Homeland Security and the Secretary of Transportation, the Coast Guard and the Maritime Administration (MARAD) coordinate with each other in processing applications for the issuance, transfer, or amendment of a license for the construction and operation of a deepwater port.

(b) MARAD is responsible for issuing the Record of Decision to announce whether a license application is approved, approved with conditions, or denied, and for issuing, revoking, and reinstating deepwater port licenses. MARAD also has authority over the approval of fees charged by adjacent coastal States, and certain matters relating to international policy, civil actions, and suspension or termination of licenses.

(c) The Secretary of Transportation has delegated authority over pipeline matters to the Pipeline Hazardous Materials and Safety Administration.

(d) The Environmental Protection Agency (EPA), U.S. Army Corps of Engineers, Minerals Management Service (MMS) in the Department of Interior, and other Federal agencies are designated as cooperating agencies and support the Coast Guard and MARAD in the review and evaluation of deepwater port license applications. You can view the interagency memorandum of understanding (MOU) outlining the relative roles and responsibilities of these and other Federal agencies at: http://www.uscg.mil/hq/G-P/mso/docs/

As used in this subchapter:

Act means the Deepwater Port Act of 1974, 33 U.S.C. 1501 et seq., as amended.

Adjacent coastal State means any coastal State which:

(1) Would be directly connected by pipeline to a deepwater port, as proposed in an application;

(2) Would be located within 15 miles of any such proposed deepwater port; or

(3) Is designated as an adjacent coastal State by the Administrator of the Maritime Administration under 33 U.S.C. 1508(a)(2).

Affiliate means a person:

(1) That has a direct or indirect ownership interest of more than 3 percent in an applicant;

(2) That offers to finance, manage, construct, or operate the applicant's deepwater port to any significant degree;

(3) That owns or controls an applicant or an entity under paragraphs (1) or (2) of this definition; or

(4) That is owned or controlled by, or under common ownership with, an applicant or an entity under paragraphs (1), (2), or (3) of this definition.

Applicant means a person that is the owner of a proposed deepwater port and is applying for a license under this part for that port.

Application means an application submitted under this part for a license to own, construct, and operate a deepwater port.

Approval series means the first six digits of a number assigned by the Coast Guard to approved equipment. Where approval is based on a subpart of 46 CFR chapter I, subchapter Q, the approval series corresponds to the number of the subpart. A list of approved equipment, including all of the approval series, is available at: http://cgmix.uscg.mil/Equipment.

Approved means approved by the Commandant (G-P).

Area to be avoided or ATBA means a routing measure comprising an area within defined limits in which either navigation is particularly hazardous or it is exceptionally important to avoid casualties and should be avoided by all ships or certain classes of vessels. An ATBA may be either recommended (“recommendatory”) or mandatory. An ATBA is recommendatory when ships are advised to navigate with caution in light of specially hazardous conditions. An ATBA is mandatory when navigation is prohibited or subject to a competent authority's conditions. ATBAs for deepwater ports are recommendatory.

Barrel means 42 U.S. gallons (approximately 159 liters) at atmospheric pressure and 60 °F (approximately 15.56 °C).

Captain of the Port or COTP means a Coast Guard officer who commands a Captain of the Port zone described in part 3 of this chapter and who is immediately responsible for enforcing port safety and security and marine environmental protection regulations within that area.

Certified industrial hygienist means an industrial hygienist who is certified by the American Board of Industrial Hygiene.

Certified marine chemist means a marine chemist who is certified by the National Fire Protection Association.

Certifying entity or CE means any individual or organization, other than the operator, permitted by the Commandant (G-PSO) to act on behalf of the Coast Guard pursuant to section 148.8 of this subpart. The activities may include reviewing plans and calculations for construction of deepwater ports, conducting inspections, witnessing tests, and certifying systems and/or components associated with deepwater ports as safe and suitable for their intended purpose.

Citizen of the United States means:

(1) Any person who is a United States citizen by law, birth, or naturalization;

(2) Any State, State agency, or group of States; or

(3) Any corporation, partnership, or other association:

(i) That is organized under the laws of any State;

(ii) Whose president, chairman of the board of directors, and general partners or their equivalents, are persons described in paragraph (1) of this definition; and

(iii) That has no more of its directors who are not persons described in paragraph (1) of this definition than constitute a minority of the number required for a quorum to conduct the business of the board of directors.

Coastal environment means the coastal waters including the lands in and under those waters, internal waters, and the adjacent shorelines including waters in and under those shorelines. The term includes, but is not limited to:

(1) Transitional and intertidal areas, bays, lagoons, salt marshes, estuaries, and beaches;

(2) Fish, wildlife, and other living resources of those waters and lands; and

(3) The recreational and scenic values of those lands, waters, and resources.

Coastal State means a State of the United States in or bordering the Atlantic, Pacific, or Arctic Oceans or the Gulf of Mexico.

Commandant (G-P) means the Assistant Commandant for Prevention, or that individual's authorized representative, at Commandant (G-P), U.S. Coast Guard, 2100 Second Street, SW., Washington, DC 20593-0001.

Confined space means a space that may contain a dangerous atmosphere, including a space that:

(1) Has poor natural ventilation, such as a space with limited openings, for example a cofferdam or double bottom tank; or

(2) Is not designed for continuous occupancy by personnel.

Construction means supervising, inspecting, actual building, and all other activities incidental to the building, repairing, or expanding of a deepwater port or any of its components. The term includes, but is not limited to, fabrication, laying of pipe, pile driving, bulk heading, alterations, modifications, and additions to the deepwater port.

Control means the direct or indirect power to determine the policy, business practices, or decisionmaking process of another person, whether by stock or other ownership interest, by representation on a board of directors or similar body, by contract or other agreement with stockholders or others, or otherwise.

Crude oil means a mixture of hydrocarbons that exists in the liquid phase in natural underground reservoirs, and remains liquid at atmospheric pressure after passing through surface separating facilities, and includes:

(1) Liquids technically defined as crude oil;

(2) Small amounts of hydrocarbons that exist in the gaseous phase in natural underground reservoirs but are liquid at atmospheric pressure after being recovered from oil well (casing head) gas in lease separators; and

(3) Small amounts of non-hydrocarbons produced with the oil.

Dangerous atmosphere means an atmosphere that:

(1) May expose personnel to the risk of death, incapacitation, injury, or acute illness; or

(2) May impair ability to escape from the atmosphere unaided.

Deepwater port:

(1) Means any fixed or floating manmade structures other than a vessel, or any group of structures, located beyond State seaward boundaries that are used or are intended for use as a port or terminal for the transportation, storage, or further handling of oil or natural gas for transportation to any State, except as otherwise provided in the Deepwater Port Act of 1974, as amended, and for other uses not inconsistent with the purposes of the Deepwater Ports Act, including transportation of oil or natural gas from the United States' OCS;

(2) Includes all components and equipment, including pipelines, pumping stations, service platforms, buoys, mooring lines, and similar facilities, to the extent that they are located seaward of the high water mark;

(3) Includes, in the case of natural gas, all components and equipment, including pipelines, pumping or compressor stations, service platforms, buoys, mooring lines, and similar facilities which are proposed and/or approved for construction and operation as part of the deepwater port, to the extent that they are located seaward of the high water mark and do not include interconnecting facilities; and

(4) Shall be considered a “new source” for purposes of the Clean Air Act, 42 U.S.C. 7401 et seq., as amended, and the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., as amended.

District commander means an officer who commands a Coast Guard district described in part 3 of this chapter, or that individual's authorized representative.

Emergency medical technician means a person trained and certified to appraise and initiate the administration of emergency care for victims of trauma or acute illness before or during transportation of the victims to a health care facility via ambulance, aircraft or vessel.

Engineering hydrographic survey means a detailed geological analysis of seabed soil samples performed to determine the physical composition, for example the mineral content, and structural integrity for the installation of offshore components and structures.

Governor means the governor of a State or the person designated by State law to exercise the powers granted to the governor under the Act.

Gross under keel clearance means the distance between the keel of a tanker and the ocean bottom when the tanker is moored or anchored in calm water free of wind, current, or tide conditions that would cause the tanker to move.

Hose string means the part of a single point mooring connection for oil or natural gas transfer made out of flexible hose of the floating or float/sink type that connects the tanker's manifold to the single point mooring.

Hot work means work that produces heat or fire, such as riveting, welding, burning, or other fire-or spark-producing operations.

Lease block means an area established either by the Secretary of the Interior under section 5 of the OCS Lands Act, 43 U.S.C. 1334, or by a State under section 3 of the Submerged Lands Act, 43 U.S.C. 1311.

License means a license issued under this part to own, construct, and operate a deepwater port.

Licensee means a citizen of the United States holding a valid license for the ownership, construction, and operation of a deepwater port that was issued, transferred, or renewed under this subchapter.

Marine environment includes:

(1) The coastal environment, waters of the contiguous zone, the Exclusive Economic Zone, and the high seas;

(2) Fish, wildlife, and other living resources of those waters; and

(3) The recreational and scenic values of those waters and resources.

Marine site means the area in which the deepwater port is located, including the safety zone and all areas seaward of the high water mark in which associated components and equipment of the deepwater port are located.

Maritime Administration or MARAD means the Administrator of the Maritime Administration or that person's designees, and includes the Associate Administrator, Port, Intermodal and Environmental Activities, Maritime Administration, or that individual's authorized representative, at 400 Seventh Street, SW., Washington, DC 20590, telephone 202-366-4721.

Metering platform means a manned or unmanned platform consisting of either a fixed or floating structure that serves as an interchange site for measuring the rate of transfer of natural gas from vessel to pipeline.

Natural gas means either natural gas, unmixed, or any mixture of natural or artificial gas, including compressed or liquefied natural gas.

Natural gas liquids means liquid hydrocarbons associated with or extracted from natural gas, for example ethane, propane and butane extracted from natural gas.

Net under keel clearance means the distance between the keel of a tanker and the ocean bottom when the tanker is underway, anchored, or moored, and subject to actual wind, waves, current, and tide motion.

No anchoring area or NAA means a routing measure comprising an area within defined limits where anchoring is hazardous or could result in unacceptable damage to the marine environment. Anchoring in a no anchoring area should be avoided by all vessels or certain classes of vessels, except in case of immediate danger to the vessel or the person on board.

Officer in Charge of Marine Inspection or OCMI means an individual who commands a marine inspection zone described in part 3 of this chapter, and who is immediately responsible for the performance of duties with respect to inspections, enforcement, and administration of regulations governing a deepwater port.

Offshore competent person means an individual trained and designated by his or her employer in matters relating to confined space pre-entry testing and certification at a deepwater port, prior to entry. An offshore competent person should demonstrate proficiency in the following criteria:

(1) Hazard description and recognition;

(2) Hazard evaluation and measurement;

(3) Hazard prevention;

(4) Control and elimination; and

(5) Practical application simulation.

Oil means petroleum, crude oil, and any substance refined from petroleum or crude oil.

Operator means the person who is licensed under 33 U.S.C. 1503 to own, construct, and operate a deepwater port, or that person's designee.

Person means an individual, a public or private corporation, a partnership or other association, or a government entity.

Person in Charge (PIC) means an individual designated as a person in charge of transfer operations under § 154.710 for oil facilities or § 127.301 for liquefied natural gas (LNG) facilities. Within this subchapter, other references to person in charge, without the use of the acronym PIC, will mean a person in charge of an operation other than transfer operations.

Personnel means individuals who are employed by licensees, operators, contractors, or subcontractors, and who are on a deepwater port because of their employment.

Pipeline end manifold means the pipeline end manifold at a single point mooring.

Platform means a fixed for floating structure that rests on or is embedded in the seabed or moored in place and that has floors or decks where an activity or specific function may be carried out.

Pumping platform complex means a platform or a series of interconnected platforms, exclusive of a deepwater port, consisting of one or more single point moorings or submerged turret loading buoys that can pump oil or natural gas and that has one or more of the following features or capabilities:

(1) Can handle the mooring and loading of small vessels;

(2) Has berthing and messing facilities; and

(3) Has a landing area for helicopters.

Reconnaissance hydrographic survey means a scientific study of fresh and saltwater bodies, currents and water content, cultural resources, seabed soils and subsea conditions, for example existing pipelines or subsea wells. A visual representation of the survey findings is normally depicted on a chart of the examined area.

Routing systems means any system of one or more vessel routes or routing measures aimed at reducing the risk of casualties. It includes traffic separation schemes, two-way routes, recommended tracks, areas to be avoided, no anchoring areas, inshore traffic zones, roundabouts, precautionary areas and deepwater routes.

Safety zone means a safety zone established around a deepwater port under part 150, subpart J, of this chapter. The safety zone may extend to a maximum distance of 500 meters (approximately 1,640 feet) around the facility, measured from each point on its outer edge or from its construction site, except as authorized by generally accepted international standards or as recommended by the International Maritime Organization. However, the zone may not interfere with the use of recognized sea lanes.

Single point mooring or SPM means an offshore berth that links an undersea pipeline to a moored tanker and allows for the transfer of oil or natural gas between the tanker and the pipeline.

Single point mooring oil transfer system or SPM-OTS means the part of the oil transfer system from the pipeline end manifold to the end of the hose string that connects to the tanker's manifold.

Single (or multiple) point mooring natural gas transfer system or SPM-NGTS (or MPM-NGTS) means the part of the natural gas transfer system from the pipeline end manifold to the end of the hose string that connects to the tanker's manifold.

State includes each State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States.

Support vessel means a vessel working for a licensee at a deepwater port or cleared by a licensee to service a tanker calling at a deepwater port, and includes a:

(1) Tug;

(2) Line-handling boat;

(3) Crew boat;

(4) Supply vessel;

(5) Bunkering vessel;

(6) Barge; or

(7) Other similar vessel.

Survival craft means a craft described in § 149.303 of this subchapter.

Tanker means a vessel that calls at a deepwater port to unload oil or natural gas.

Vessel means every description of watercraft, including non-displacement craft e.g., wing-in-ground (WIG) craft, seaplanes) capable of being used, as a means of transportation on or through the water.

(a) Applicants and licensees may nominate a certifying entity (CE) for the performance of tasks for which the Coast Guard is responsible under this subchapter.

(b) Nominations may be made at any time after the Maritime Administration issues a record of decision approving the application, and must include the following information for each nominee:

(1) The specific functions or tasks to be performed by the nominee;

(2) Name and address;

(3) Size and type of organization or corporation;

(4) Previous experience as a CE, certified verification agent, or similar third-party representative;

(5) Experience in design, fabrication, or installation of fixed offshore oil and gas platforms, similar fixed, floating, or gravity-based structures and project-related structures, systems, and equipment;

(6) Technical capabilities, including professional certifications and organizational memberships of the nominee or the primary staff to be associated with its duties for the specific project;

(7) In-house availability of, or access to, appropriate technology such as computer modeling programs and hardware or testing materials and equipment;

(8) Ability to perform and effectively manage the duties for which it is nominated considering current resource availability;

(9) Previous experience with regulatory requirements and procedures;

(10) A statement signed by the nominee's chief officer or that person's designee that the nominee:

(i) Is not owned or controlled by the designer, manufacturer, or supplier of any equipment, material, system, or subsystem that would be the subject of the nominee's duties, or by any manufacturer of similar equipment or material; and that

(ii) The nominee will allow access to an official representative of the Coast Guard, upon request, to facilities or records that relate to its duties; and

(11) A list of documents and certifications to be furnished to the Coast Guard by the nominee.

(c) The Commandant (G-P) may accept or reject the nomination of a CE and will provide guidance and oversight to each CE. The Commandant (G-P) may terminate the acceptance of a CE at any time.

This subpart describes how to apply for a license to own, construct, and operate a deepwater port.

Your application must include the information required by this section.

(a) General. For each applicant, affiliate, and consultant:

(1) The name, address, telephone number, citizenship, and principal business activity of the applicant and its affiliates;

(2) The name, address, and principal business activity of each subsidiary, division of the applicant, or its affiliates that participated in the decision to apply for a license to build a deepwater port;

(3) A description of how each affiliate is associated with the applicant, and of the ownership interest each affiliate has in the applicant;

(4) A list of the applicant's corporate officers and directors, and each affiliate that participated in the decision to apply for a license;

(5) A statement for each applicant or affiliate, providing complete and detailed information on any civil or criminal legal proceeding during the preceding 5 years that relates to, or that could materially affect, information in the license application; and,

(6) A declaration by the applicant that neither the applicant nor its affiliate has engaged in any lobbying activities that are prohibited by 31 U.S.C. 1352 or any other applicable Federal anti-lobbying statute.

(b) Experience in matters relating to deepwater ports. (1) A description of the applicant's, affiliate's, and consultant's experience in offshore operations, particularly operations involving the transfer and storage of liquid cargo, and the loading and unloading of vessels.

(2) For each affiliate that has a significant contract with the applicant for construction of the deepwater port, a description of that affiliate's experience in construction of marine terminal facilities, offshore structures, underwater pipelines, and seabed foundations; in addition to a description of other experiences that would bear on the affiliate's qualification to participate in the construction of a deepwater port.

(c) Engineering firms. For each engineering firm, if known, that will design the deepwater port or a portion of the port, the application must include the firm's:

(1) Name;

(2) Address;

(3) Citizenship;

(4) Telephone number; and

(5) Qualifications.

(d) Citizenship and operating authority. For each applicant or group of applicants, provide:

(1) An affidavit that the applicant is a citizen of the United States;

(2) For State agency applicants, the law authorizing the applicant to undertake the operations detailed in the application;

(3) For private corporation applicants, the current charter or certificate of incorporation and current by-laws; and affidavits of U.S. or foreign citizenship from the president, chairman of the board, and each director or their equivalents; for limited liability companies, the equivalent organizational documents, and affidavits from the members of the Board of Managers, and members; and

(4) For partnerships, including limited liability partnerships, or associations not formed or owned solely by individual citizens of the United States, the certificate of formation; the partnership agreement or articles of association; the current by-laws; the minutes of the first board meeting; and affidavits of U.S. or foreign citizenship from the president and each director, or their equivalents.

(e) Address for service of documents. The name and address of one individual who may be served with documents if a formal hearing is held concerning the application, and the name and address of one individual who may receive other documents.

(f) Location and use. The proposed location and capacity of the deepwater port, a general description of the anticipated use of the port, and whether access will be open or closed.

(g) Financial information. (1) For the applicant, each affiliate with an ownership interest in the applicant of greater than 3 percent, and affiliates which have a direct contractual relationship with the deepwater port:

(i) Annual financial statements, audited by an independent certified public accountant, for the previous 3 years, including, but not limited to, an income statement, balance sheet, and cash flow statement with footnote disclosures prepared according to U.S. Generally Accepted Accounting Principles; provided, however, that the Commandant (G-P), in concurrence with MARAD, may waive this requirement upon finding:

(A) That the affiliate does not, in the normal course of business, produce audited statements; and

(B) That the affiliate is part of a larger corporate group whose audited statement provides sufficient information to support an adequate assessment of the affiliate's relationship with and impact on the applicant; and

(ii) Interim income statements and balance sheets for each quarter that ends at least 30 days before submission of the application, unless it is included in the most recent annual financial statement.

(2) An estimate of construction costs, including:

(i) A phase-by-phase breakdown of costs;

(ii) The estimated completion dates for each phase; and

(iii) A preliminary estimate of the cost of removing all of the deepwater port marine components, including pipelines that lie beneath the seabed. The operator of a deepwater port is responsible for the costs associated with removal of all port components. Should a license be granted, MARAD will require a bond, guarantee, or other financial instrument to cover the complete cost of decommissioning as a condition of the license.

(3) Annualized projections or estimates, along with the underlying assumptions, for the next 5 years and at reasonable intervals throughout the life of the deepwater port, of each of the following:

(i) Total oil or natural gas throughput, and subtotals showing throughput owned by the applicant and its affiliates and throughput owned by others;

(ii) Projected financial statements, including a balance sheet and income statement; and

(iii) Annual operating expenses, showing separately any payment made to an affiliate for any management duties carried out in connection with the operation of the deepwater port.

(4) A copy of all proposals or agreements concerning the management and financing of the deepwater port, including agreements relating to throughputs, capital contributions, loans, guarantees, commitments, charters, and leases.

(5) The throughput reports for the calendar year preceding the date of the application, for the applicant and each of the applicant's affiliates engaged in producing, refining, or marketing oil or natural gas and natural gas liquids, along with a copy of each existing or proposed throughput agreement. Each throughput report must list the throughput of the following products:

(i) Crude oil; and if crude oil is the only product the port is designed to transport, the throughput report may be limited to reporting crude oil;

(ii) Gasoline;

(iii) Jet aviation fuel;

(iv) Distillate fuel oils;

(v) Other refinery products;

(vi) Natural gas; and

(vii) Natural gas liquids.

(h) Construction contracts and construction-related studies. (1) A copy of each contract that the applicant made for the construction of any component of the deepwater port or for the operation of the port.

(2) A listing and abstract of:

(i) All completed or ongoing studies on deepwater ports conducted by or for the applicant; and

(ii) All other construction-related studies used by the applicant.

(3) The identity of each contractor, if known, that will construct or install the deepwater port or a portion of the port, including each firm's:

(i) Name;

(ii) Address;

(iii) Citizenship;

(iv) Telephone number; and

(v) Qualifications.

(i) Compliance with Federal water pollution requirements.

(1) Evidence, to the extent available, that the requirements of section 401(a)(1) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1341(a)(1), will be satisfied. If complete information is not available by the time MARAD must either approve or deny the application under 33 U.S.C. 1504(i)(1), the license for the deepwater port is conditioned upon the applicant demonstrating that the requirements of section 401(a)(1) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1341(a)(1), will be satisfied.

(2) In cases where certification under 33 U.S.C. 1341(a)(1) must be obtained from the Environmental Protection Agency Administrator, the request for certification, and pertinent information, such as plume modeling, related to the certification.

(j) Coastal zone management. A request for each certification required by section 307 of the Coastal Zone Management Act of 1972, 16 U.S.C. 1456, as amended.

(k) Identification of lease block. (1) Identification of each lease block where any part of the proposed deepwater port or its approaches is located. This identification must be made on official OCS leasing maps or protraction diagrams, where available. Each map and diagram must be certified by a professional surveyor. For each lease block, provide the following:

(i) A description of each pipeline, or other right-of-way crossing, in enough detail to allow plotting of the rights-of-way to the nearest one-tenth of a second in latitude and longitude; and

(ii) The identity of the lessee or grantee of each pipeline or other right-of-way.

(2) Detailed information concerning any interest that anyone, including the applicant, has in each block.

(3) Detailed information concerning the present and planned use of each block.

(l) Overall site plan. Single-line drawings showing the location and type of each component of the proposed deepwater port and its necessary facilities, including:

(1) Floating structures;

(2) Fixed structures;

(3) Aids to navigation;

(4) Manifold systems; and

(5) Onshore storage areas, pipelines, and refineries.

(m) Site plan for marine components. A site plan consisting of the following:

(1) The proposed size and location of all:

(i) Fixed and floating structures and associated components seaward of the high water mark, only if the proposal does not involve a connected action, for example, installation of new pipeline extending inshore of the state boundary line;

(ii) Recommended ships' routing measures and proposed vessel traffic patterns in the port area, including aids to navigation;

(iii) Recommended anchorage areas and, for support vessels, mooring areas; and

(2) A reconnaissance hydrographic survey of the proposed marine site. This survey should provide data on the water depth, prevailing currents, cultural resources, and a general characterization of the sea bottom. A requirement to submit an engineering hydrographic survey of the final marine site will be imposed as a condition in the license. The latter survey will require more extensive analysis of the soil, and detailed study to determine its physical composition, such as minerals, and if the sea bottom can support fixed components comprising a deepwater port. The applicant may submit existing data, gathered within the previous 5 years, but it must be supplemented by field data for the specific locations in which a high degree of variability exists.

(n) Soil data. An analysis of the general character and condition of the ocean bottom, sub-bottom, and upland soils throughout the marine site. The applicant may use existing data, so long as it was collected within the last 5 years and continues to provide accurate information about conditions throughout the site. If not, a new survey must be completed to provide supplemental data. The analysis must include an opinion by a registered professional engineer specializing in soil mechanics concerning:

(1) The suitability of the soil to accommodate the anticipated design load of each marine component that will be fixed to or supported on the ocean floor; and

(2) The stability of the seabed when exposed to environmental forces resulting from severe storms or lesser forces that occur over time, including any history of accretion or erosion of the coastline near the marine site.

(o) Archeological information. An analysis of the information from the reconnaissance hydrographic survey by a qualified underwater archeologist to determine the historical or other significance of the area where the site evaluation and pre-construction testing activities were conducted. The analysis must meet standards established by the Minerals Management Service for activities on the OCS, or an alternative standard that has been submitted to and approved by the Coast Guard. The survey must include the areas potentially affected by the deepwater port, or any other associated platforms, and its pipeline route(s).

(p) Vessel information. (1) The nation of registry for, and the nationality or citizenship of, officers and crew serving on board vessels transporting natural gas that are reasonably anticipated to be servicing the deepwater port; and

(2) Description of the information that will be provided in the operations manual pertaining to vessel operations, vessel characteristics, and weather forecasting.

(q) Information on floating components. (1) A description and preliminary design drawing of each floating component, including the hoses, anchoring or securing structure, and navigation lights if the component is a mooring buoy.

(2) The criteria, developed under part 149 of this chapter, to which each floating component will be designed and built.

(3) The design standards and codes to be used.

(4) The title of each recommended engineering practice that will be applied.

(5) A description of safety, firefighting, and pollution prevention equipment to be used on each floating component.

(6) A description of the lighting that will be used on floating hoses, for night detection.

(r) Information on dedicated fixed offshore components. (1) A description and preliminary design drawing for each dedicated fixed offshore component.

(2) The design criteria, developed under part 149 of this chapter, to which each fixed offshore component will be designed and built.

(3) The design standards and codes to be used.

(4) The title of each recommended engineering practice to be followed.

(5) A description of the following equipment that will be installed:

(i) Navigational lighting;

(ii) Safety equipment;

(iii) Lifesaving equipment;

(iv) Firefighting equipment;

(v) Pollution prevention equipment, excluding response equipment which must be outlined in the facility response plan; and

(vi) Waste treatment equipment.

(6) A description and preliminary design drawing of the following:

(i) The cargo pumping equipment;

(ii) The cargo piping system;

(iii) The control and instrumentation system; and

(iv) Any associated equipment, including equipment for oil or natural gas throughput measuring, leak detection, emergency shutdown, and the alarm system.

(7) The personnel capacity of each deepwater port pumping platform complex.

(s) Refurbished OCS facilities and co-located fixed offshore components. (1) A description and preliminary design drawing for each such facility or component.

(2) The design criteria, developed under part 149 of this chapter, to which each facility or component will be designed and built or modified;

(3) The design standards and codes to be used;

(4) The title of each recommended engineering practice to be followed;

(5) A description of the following equipment to be installed or refurbished:

(i) Navigational lighting;

(ii) Safety equipment;

(iii) Lifesaving equipment;

(iv) Firefighting equipment;

(v) Pollution prevention equipment, excluding response equipment which must be outlined in the facility response plan;

(vi) Waste treatment equipment; and

(vii) Cathodic protection.

(6) A description and preliminary design drawing of the following:

(i) The cargo pumping equipment;

(ii) The cargo piping system;

(iii) The control and instrumentation system; and

(iv) Any associated equipment, including equipment for oil or natural gas throughput measuring, leak detection, emergency shutdown, and the alarm system.

(7) The personnel capacity of each deepwater port pumping platform complex.

(t) Information on offshore pipelines. (1) A description and preliminary design drawing of the marine pipeline, including:

(i) Size;

(ii) Throughput capacity;

(iii) Length;

(iv) Depth of cover; and

(v) Protective devices.

(2) The design criteria to which the marine pipeline will be designed and built.

(3) The design standards and codes to be used.

(4) The title of each recommended engineering practice to be followed.

(5) A description of the metering system that will measure flow rate.

(6) Information concerning all submerged or buried pipelines that will be crossed by the offshore pipeline, and how each crossing will be made.

(7) Information on the pipeline that will connect to the port, including a detailed analysis that shows throughput and capacity rates of all pipelines involved in the transport of product to shore.

(u) Information about onshore components. To the extent known by the applicant:

(1) A description of the location, capacity, and ownership of all planned and existing onshore pipelines, storage facilities, refineries, petrochemical facilities, and transshipment facilities that will be served by the deepwater port. Crude oil or natural gas gathering lines and lines wholly within a deepwater port must be included in data about onshore components only if specifically required. Entry points and major connections between lines and with bulk purchasers must be included.

(2) A chart showing the location of all planned and existing facilities that will be served by the port, including:

(i) Onshore pipelines;

(ii) Storage facilities;

(iii) Refineries;

(iv) Petrochemical facilities; and

(v) Transshipment facilities.

(3) A copy of all proposals or agreements with existing and proposed refineries that will receive oil transported through the deepwater port, the location and capacity of each such refinery, and the anticipated volume of such oil to be refined by each such refinery.

(v) Information on miscellaneous components. (1) A description of each radio station or other communications facility to be used during construction and operation of the deepwater port and its proposed concept of operation.

(2) A description of the radar navigation system to be used in operation of the deepwater port outlined in the operations manual.

(3) A description of the method that will be used for bunkering vessels using the deepwater port.

(4) A brief description of the type, size, and number of vessels that will be used in bunkering, mooring, and servicing the vessels using the deepwater port.

(5) A description and location of the shore-based support facilities, if any, that will be provided for vessels that will be used in bunkering, mooring, and servicing the vessels using the deepwater port; or that serve as offices or facilities in support of the deepwater port operations.

(6) A copy of the actual radio station license, or, if not available, a copy of the application sent to the Federal Communications Commission, if available.

(w) Construction procedures. A description of the method and procedures to be used in constructing each component of the deepwater port, for example shoreside fabrication, assembly and support, including anticipated dates of completion for each specific component during each phase of construction.

(x) Operations manual. A draft of the operations manual for the proposed port, containing the information under § 150.15 of this chapter, must demonstrate the applicant's ability to operate the port safely and effectively. To the extent that circumstances are similar, this demonstration can be in the form of evidence appended to the draft operations manual of the applicant's participation in the safe and effective management or operation of other offshore facilities, for example, evidence of compliance with Mineral Management Service requirements for those facilities. If the information required for the manual is not available, state why it is not and when it will be available.

(y) Risk and consequence assessment. Data to support an independent, site-specific analysis to assess the risks and consequences of accidental and intentional events that compromise cargo containment. At minimum, potential events that result in liquefied natural gas or oil spill, vapor dispersion and/or fire will be analyzed. The Coast Guard will utilize validated models, for example computational fluid dynamics or an equivalent model. The applicant may consult with Commandant (G-P) to ensure that appropriate assessment procedures are used.

(z) Environmental evaluation. An analysis, sufficient to meet the requirements of the National Environmental Policy Act, and as outlined in subpart G of this part, of the potential impacts on the natural and human environments, including sufficient information that complies with all applicable Federal, tribal, and State requirements for the protection of the environment.

(aa) Aids to navigation. (1) For each proposed aid to navigation, the proposed position of the aid, described by latitude and longitude coordinates to the nearest second or tenth of a second, as determined from the largest scale chart of the area in which the aid is to be located. Specify latitude and longitude to a level obtained by visual interpolation between the finest graduation of the latitude and longitude scales on the chart.

(2) For each proposed obstruction light and rotating lit beacon:

(i) Color;

(ii) Characteristic;

(iii) Effective intensity;

(iv) Height above water; and

(v) General description of the illumination apparatus.

(3) For each proposed sound signal on a structure, a general description of the apparatus.

(4) For each proposed buoy:

(i) Shape;

(ii) Color;

(iii) Number or letter;

(iv) Depth of water in which located; and

(v) General description of any light and/or sound signal apparatus on the buoy.

(5) For the proposed radar beacon, or RACON, height above water and a general description of the apparatus.

(bb) National Pollutant Discharge Elimination System (NPDES). A copy of the NPDES Application for Permit to Discharge Short Form D, for applying for a discharge permit from the Environmental Protection Agency (EPA) and any accompanying studies and analyses. If complete information is not available by the time MARAD must either approve or deny the application for a designated application area under 33 U.S.C. 1504(i)(1), the license for the deepwater port is conditioned upon the applicant receiving the required discharge permit from the EPA before the start of any discharge requiring such a permit. The issuance of the permit demonstrates that all potential water discharges have been satisfactorily analyzed and water quality control measures implemented to mitigate discharges to meet NPDES.

(cc) Structures' placement and the discharge of dredged or fill material. The information required to obtain a Department of the Army permit for placement of structures and the discharge of dredged or fill material.

(dd) Additional Federal authorizations. All other applications for Federal authorizations not listed elsewhere in this subpart that are required for ownership, construction, and operation of a deepwater port.

(ee) Sworn statement. A statement that the information in the application is true must be placed at the end of the application, sworn to before a notary public, and signed by a responsible applicant official.

(a) The Commandant (G-P), in coordination with MARAD, may require the applicant or the applicant's affiliates to file, as a supplement to the application, any analysis, explanation, or other information he or she deems necessary.

(b) The Commandant (G-P) may require the applicant or the applicant's affiliates to make available for Coast Guard examination, under oath or for interview, persons having, or believed to have, necessary information.

(c) The Commandant (G-P) may set a deadline for receiving the information.

(1) If the applicant states that the required information is not yet available but will be at a later date, the Commandant (G-P) may specify a later deadline.

(2) If a requirement is not met by a deadline fixed under this paragraph, the Commandant (G-P), in coordination with MARAD, may determine whether compliance with the requirement is important to processing the application within the time prescribed by the Act.

(3) If the requirement is important to processing the application within the time limit set by the Act, the Commandant (G-P) may recommend to the Maritime Administrator that he or she either not approve the application or suspend it indefinitely. The deadline for the Administrator's review under the Act is extended for a period of time equal to the time of the suspension.

(a) Any Federal or State agency or other interested person may recommend that the applicant provide information that is not specified by this subchapter.

(b) Recommendations must state briefly why the information is needed.

(c) The Commandant (G-P) must receive the request prior to the closing dates for the comment periods for scoping, and the draft or final environmental impact statement or environmental assessment. MARAD will consider the request before making a final decision on whether or not to approve the license application.

(d) The Commandant (G-P) will consider whether:

(1) The information requested is essential for processing the license application; and

(2) The time and effort required by the applicant in gathering the information will result in an undue delay in the application process.

(e) The Commandant (G-P) may discuss the recommendation with the recommending person and the applicant prior to issuing a determination.

(a) Any person may confer with the Commandant (G-P) concerning requirements contained in this rule for the preparation of an application or the requirements of this subchapter.

(b) The applicant may incorporate, by clear and specific reference in the application:

(1) Standard reference material that the applicant relied on that is readily available to Federal and State agencies;

(2) Current information contained in previous applications or reports that the applicant has submitted to the application staff; or

(3) Current information contained in a tariff, report, or other document previously filed for public record with the Surface Transportation Board or the Securities and Exchange Commission, if:

(i) A certified true and complete copy of the document is attached to each copy of the application as required by § 148.115(a);

(ii) The date of filing and the document number are on the cover of the document; and

(iii) Any verification or certification required for the original filing, other than from auditors or other independent persons, is dated no earlier than 30 days before the date of the application.

Send the following copies of the application:

(a) Two printed copies and three electronic versions to the Commandant (G-PSO), U.S. Coast Guard, 2100 Second Street SW., Washington, DC 20593-0001.

(b) Two printed copies and two electronic versions to the MARAD Administrator, 400 7th Street SW., Washington, DC 20590.

(c) One copy to the U.S. Army Corps of Engineers District Office having jurisdiction over the proposed port. For the address, see http://www.usace.army.mil/.

(d) Additional printed and electronic copies for distribution to Federal, tribal, and State regulatory agencies involved in reviewing the application in accordance with the needs of each agency.

(a) The applicant must submit a nonrefundable application fee of $350,000 with each application for a license. If additional information is necessary to make an application complete, no additional application fee is required.