[Title 33 CFR M]
[Code of Federal Regulations (annual edition) - July 1, 2005 Edition]
[Title 33 - NAVIGATION AND NAVIGABLE WATERS]
[Chapter I - COAST GUARD, DEPARTMENT OF HOMELAND SECURITY (CONTINUED)]
[Subchapter M - MARINE POLLUTION FINANCIAL RESPONSIBILITY AND COMPENSATION]
[From the U.S. Government Printing Office]
33NAVIGATION AND NAVIGABLE WATERS22005-07-012005-07-01falseMARINE POLLUTION FINANCIAL RESPONSIBILITY AND COMPENSATIONMSUBCHAPTER MNAVIGATION AND NAVIGABLE WATERSCOAST GUARD, DEPARTMENT OF HOMELAND SECURITY (CONTINUED)
SUBCHAPTER M_MARINE POLLUTION FINANCIAL RESPONSIBILITY AND COMPENSATION
PART 133_OIL SPILL LIABILITY TRUST FUND; STATE ACCESS--Table of Contents
Sec.
133.1 Purpose.
133.3 Definitions.
133.5 Requests: General.
133.7 Requests: Amount.
133.9 Requests: Where made.
133.11 Requests: Contents.
133.13 Removal actions eligible for funding.
133.15 Determination of eligibility for funding.
133.17 Conduct of removal actions.
133.19 Recordkeeping.
133.21 Records retention.
133.23 Investigation to determine the source and responsible party.
133.25 Notification of Governor's designee.
Authority: 33 U.S.C. 2712(e); E.O. 12777 (3 CFR, 1991 Comp., p.
351); 49 CFR 1.46.
Source: CGD 92-014, 57 FR 53969, Nov. 13, 1992, unless otherwise
noted.
Sec. 133.1 Purpose.
This part prescribes procedures for the Governor of a State to
request payments from the Oil Spill Liability trust Fund (the Fund) for
oil pollution removal costs under section 1012(d)(1) of the Oil
Pollution Act of 1990 (the Act) (33 U.S.C. 2712(d)(1)).
Sec. 133.3 Definitions.
(a) As used in this part, the following terms have the same meaning
as set forth in section 1001 of the Act (33 U.S.C. 2701): ``discharge'',
``exclusive economic zone'', ``Fund'', ``incident'', ``National
Contingency Plan'', ``navigable waters'', ``oil'', ``remove'',
``removal'', ``removal costs'', ``responsible party'', ``State'', and
``United States''.
(b) As used in this part--
Act means Title I of the Oil Pollution Act of 1990 (33 U.S.C. 2701
through 2719).
Director, NPFC, means the person in charge of the U.S. Coast Guard
National Pollution Funds Center or that person's authorized
representative.
NPFC means the U.S. Coast Guard National Pollution Funds Center,
4200 Wilson Boulevard, suite 1000, Arlington, Virginia 22203-1804.
On-Scene Coordinator or OSC means the Federal official predesignated
by the Environmental Protection Agency or the U.S. Coast Guard to direct
and coordinate all efforts for removal of a discharge, or the mitigation
or the prevention of a substantial threat of a discharge, of oil.
Removal action means an incident-specific activity taken under this
part to contain or remove a discharge, or to mitigate or prevent a
substantial threat of a discharge, of oil.
Sec. 133.5 Requests: General.
(a) Upon a request submitted in accordance with this part by the
Governor of a State or his or her designated State official, the OSC may
obtain a Federal Project Number (FPN) and a ceiling not to exceed
$250,000 per incident for removal costs. The removal costs must be for
the immediate removal of a discharge, or the mitigation or prevention of
a substantial threat of a discharge, of oil.
(b) Before a request under this part is made, the State official
shall ensure that the procedures in the National Contingency Plan (40
CFR part 300) for notifying Federal authorities of the discharge or
threat of discharge have been met.
(c) The Federal Grant and Cooperative Agreement Act of 1977 (31
U.S.C. 6301-6308) and 49 CFR parts 18, 20, 29, and 90 apply to Fund
monies obligated for payment under this part.
Sec. 133.7 Requests: Amount.
(a) The amount of funds that may be requested under this part--
(1) Is limited to the amount anticipated for immediate removal
action for a single oil pollution incident, but, in any event, may not
exceed $250,000 per incident;
(2) Must be for removal costs consistent with the National
Contingency Plan; and
(3) Must be reasonable for the removal actions proposed, considering
such factors as quantity and composition of the oil, weather conditions
and
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customary costs of similar services in the locale.
(b) The funds requested are obligated only to the extent they are
determined to be for immediate removal actions which are reasonable and
otherwise eligible for payment under this part.
Sec. 133.9 Requests: Where made.
Requests for access to the Fund under Sec. 133.5 must be made by
telephone or other rapid means to the OSC.
Sec. 133.11 Request: Contents.
In making a request for access to the Fund, the person making the
request shall--
(a) Indicate that the request is a State access request under 33 CFR
part 133;
(b) Give his or her name, title, department, and State;
(c) Describe the incident in sufficient detail to allow a
determination of jurisdiction, including at a minimum the date of the
occurrence, type of product discharged, estimated quantity of the
discharge, body of water involved, and proposed removal actions for
which funds are being requested under this part; and
(d) Indicate the amount of funds being requested.
Sec. 133.13 Removal actions eligible for funding.
To be eligible for funding under this part, each removal action must
meet the following:
(a) Must be for an incident, occurring after August 18, 1990, which
resulted in a discharge, or the substantial threat of a discharge, of
oil into or upon the navigable waters or adjoining shorelines.
(b) Must comply with the National Contingency Plan.
(c) Must be an immediate removal action.
Sec. 133.15 Determination of eligibility for funding.
Upon receipt of the information under Sec. 133.11 and, if
necessary, from other sources determined to be appropriate at his or her
discretion, the OSC will determine whether the proposed removal actions
meet the requirements of Sec. 133.13. If necessary, the OSC may seek
further clarification of the proposed actions from the State official.
The OSC shall expeditiously notify the State official and the Director,
NPFC, of his or her decision.
Sec. 133.17 Conduct of removal actions.
Removal actions funded under this part must be coordinated with the
OSC and conducted in accordance with the National Contingency Plan.
Sec. 133.19 Recordkeeping.
(a) The State official shall maintain detailed records of
expenditures made from the funds provided under this part, including
records of--
(1) Daily expenditures for each individual worker, giving the
individual's name, title or position, activity performed, time on task,
salary or hourly rate, travel costs, per diem, out-of-pocket or
extraordinary expenses, and whether the individual is normally available
for oil spill removal;
(2) Equipment purchased or rented each day, with the daily or hourly
rate;
(3) Miscellaneous materials and expendables purchased each day; and
(4) Daily contractor or consultant fees, including costs for their
personnel and contractor-owned or rented equipment, as well as that of
any subcontractor.
(b) The State official shall submit a copy of these records and a
summary document stating the total of all expenditures made to the NPFC
official specified in Sec. 133.25(c) within thirty days after
completion of the removal actions. A copy of these documents shall also
be submitted to the cognizant OSC.
(c) Upon request of the OSC or the NPFC, the State official shall
make the original records available for inspection.
(d) If, after inspecting the records, the Director, NPFC, determines
that expenditures by a State official from funds obligated under this
part were not eligible for funding under this part and the expenditures
were not made with the good faith understanding that they were eligible
under this part, the Director, NPFC, may seek reimbursement to the Fund
from the State.
[[Page 60]]
Sec. 133.21 Records retention.
(a) The State official shall maintain all records for ten years
following completion of the removal actions.
(b) If any litigation, claim, negotiation, audit, cost recovery, or
other action involving the records has been started before the
expiration of the ten-year period, the records must be retained until
completion of the action and resolution of all issues which arise from
it, or until the end of the regular ten-year period, whichever is later.
Sec. 133.23 Investigation to determine the source and responsible party.
(a) The State official shall promptly make a thorough investigation
to determine the source of the incident and the responsible party.
(b) Upon completion of the investigation, the State official shall
forward the results of the investigation and copies of the supporting
evidence identifying the source and the responsible party to both the
cognizant OSC and the NPFC official specified in Sec. 133.25(c).
Sec. 133.25 Notification of Governor's designee.
(a) If the Governor of a State anticipates the need to access the
Fund under this part, he or she must advise the NPFC in writing of the
specific individual who is designated to make requests under this part.
(b) This designation must include the individual's name, address,
telephone number, and title or capacity in which employed.
(c) The information required by paragraph (b) of this section must
be forwarded to the Chief, Case Management Division, National Pollution
Funds Center, Suite 1000, 4200 Wilson Boulevard, Arlington, Virginia
22203-1804.
PART 135_OFFSHORE OIL POLLUTION COMPENSATION FUND--Table of Contents
Subpart A_General
Sec.
135.1 Purpose.
135.3 Applicability.
135.5 Definitions.
135.7 Delegation--Fund Administrator.
135.9 Fund address.
Subpart B_Levy of Fees
135.101 Purpose.
135.103 Levy and payment of barrel fee on OCS oil.
Subpart C_Financial Responsibility for Offshore Facilities
135.201 Applicability.
135.203 Amount required.
135.204 Submission of evidence.
135.205 Methods of establishing.
135.207 Insurance as evidence.
135.209 Guaranty as evidence.
135.210 Indemnity as evidence.
135.211 Surety bond as evidence.
135.213 Qualification as self-insurer.
135.215 Certification.
135.219 Notification of changes affecting certification.
135.221 Reapplication for certification.
135.223 Certificates, denial or revocation.
Subpart D_Notification of Pollution Incidents
135.303 Definitions.
135.305 Notification procedures.
135.307 Notification contents.
Subpart E_Access, Denial, and Detention
135.401 Access to vessel, Certificates of Financial Responsibility.
135.403 Sanctions for failure to produce vessel Certificates of
Financial Responsibility.
135.405 Appeal provisions.
Authority: 33 U.S.C. 2701-2719; E.O. 12777, 56 FR 54757; 49 CFR
1.46.
Source: CGD 77-055, 44 FR 16868, Mar. 19, 1979, unless otherwise
noted.
Subpart A_General
Sec. 135.1 Purpose.
(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.).
Sec. 135.3 Applicability.
(a) This part applies to each person who:
(1) Owns oil obtained from the Outer Continental Shelf when the oil
in produced;
[[Page 61]]
(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.
Sec. 135.5 Definitions.
(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)).
Sec. 135.7 Delegation--Fund Administrator.
(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.
Sec. 135.9 Fund address.
The address to which correspondence relating to the Coast Guard's
administration of the Fund should be directed is: U.S. Coast Guard
National Pollution Funds Center, 4200 Wilson Boulevard, Suite 1000,
Arlington, VA 22203-1804.
[CGD 86-032, 52 FR 23175, June 18, 1987, as amended by CGD 88-052, 53 FR
25120, July 1, 1988; USCG-1998-3799, 63 FR 35530, June 30, 1998]
Subpart B_Levy of Fees
Sec. 135.101 Purpose.
(a) The purpose of this subpart is to state the general requirements
concerning the levy of fees.
Sec. 135.103 Levy and payment of barrel fee on OCS oil.
(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.
[[Page 62]]
(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, Sec. 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.
[CGD 88-050, 53 FR 52997, Dec. 30, 1988, as amended by CGD 90-005, 55 FR
17268, Apr. 24, 1990]
Subpart C_Financial Responsibility for Offshore Facilities
Sec. 135.201 Applicability.
(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.
Note: Regulations governing financial responsiblity and
certification for vessels are promulgated by the Federal Maritime
Commission.
Sec. 135.203 Amount required.
(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.
Sec. 135.204 Submission of evidence.
(a) Where the offshore facility is owned and operated solely by one
person, that person must establish and maintain evidence of financial
responsibility covering the facility.
(b) Where the offshore facility is owned in its entirety by one
person and operated solely by another person, evidence of financial
responsibility covering the facility must be established and maintained
by either the owner or the operator, or, in consolidated form, by both
the owner and operator.
[[Page 63]]
(c) Where the offshore facility is owned or operated by more than
one person, evidence of financial responsibility covering the facility
must be established and maintained by any one of the owners or
operators, or, in consolidated form, by or on behalf of two or more
owners or operators.
(d) When evidence of financial responsibility is established in a
consolidated form, the proportional share of each participant must be
shown. The evidence must be accompanied by a statement authorizing the
applicant to act for and in behalf of each participant in submitting and
maintaining the evidence of financial responsibility.
(e) Each owner and operator of a facility is subject to the penalty
provided by section 312(a) of the Act if evidence of financial
responsibility is not established and maintained for that facility.
Sec. 135.205 Methods of establishing.
(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.
Sec. 135.207 Insurance as evidence.
(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 Sec. 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.
Sec. 135.209 Guaranty as evidence.
(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
[[Page 64]]
(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 Sec. 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.
Sec. 135.210 Indemnity as evidence.
(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 Sec. 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.
Sec. 135.211 Surety bond as evidence.
(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 Sec. 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.
[[Page 65]]
Sec. 135.213 Qualification as self-insurer.
(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.
Sec. 135.215 Certification.
(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 Sec. 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
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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 Sec. 135.223 of
this subpart.
(g) Applicants shall obtain a Certificate of Financial
Responsibility for each facility.
Sec. 135.219 Notification of changes affecting certification.
(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.
Sec. 135.221 Reapplication for certification.
(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 Sec. 135.204.
Sec. 135.223 Certificates, denial or revocation.
(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
Sec. 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 Sec. 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
[[Page 67]]
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.
Subpart D_Notification of Pollution Incidents
Sec. 135.303 Definitions.
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.
[CGD 77-055, 44 FR 16868, Mar. 19, 1979, as amended by CGD 91-035, 57 FR
36316, Aug. 12, 1992]
Sec. 135.305 Notification procedures.
(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, 2100 Second Street,
SW., Washington, DC 20593-0001, toll free telephone number 800-424-8802;
or
(2) The commanding officer or supervisor of any Coast Guard Marine
Safety Office, Captain of the Port Office, Marine Safety Detachment 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 C of 33 CFR Part 153
concerning Notice of the Discharge of Oil.
[CGD 77-055, 44 FR 16868, Mar. 19, 1979, as amended by USCG-1998-3799,
63 FR 35530, June 30, 1998]
Sec. 135.307 Notification contents.
(a) In each notification provided under Sec. 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
[[Page 68]]
must provide any information not immediately available when it becomes
known.
Subpart E_Access, Denial, and Detention
Sec. 135.401 Access to vessel, Certificates of Financial Responsibility.
(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.
Sec. 135.403 Sanctions for failure to produce vessel Certificates 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 termi nates 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.
Sec. 135.405 Appeal provisions.
(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.
PART 136_OIL SPILL LIABILITY TRUST FUND; CLAIMS PROCEDURES; DESIGNATION
OF SOURCE; AND ADVERTISEMENT--Table of Contents
Subpart A_General
Sec.
136.1 Purpose and applicability.
136.3 Information.
136.5 Definitions.
136.7 Foreign claimants.
136.9 Falsification of claims.
Subpart B_General Procedure
136.101 Time limitations on claims.
136.103 Order of presentment.
136.105 General requirements for a claim.
136.107 Subrogated claims.
136.109 Removal costs and multiple items of damages.
136.111 Insurance.
136.113 Other compensation.
136.115 Settlement and notice to claimant.
Subpart C_Procedures for Particular Claims
Removal Costs
136.201 Authorized claimants.
136.203 Proof.
136.205 Compensation allowable.
Natural Resources
136.207 Authorized claimants.
136.209 Proof.
136.211 Compensation allowable.
Real or Personal Property
136.213 Authorized claimants.
136.215 Proof.
136.217 Compensation allowable.
Subsistence Use
136.219 Authorized claimants.
136.221 Proof.
136.223 Compensation allowable.
Government Revenues
136.225 Authorized claimants.
136.227 Proof.
136.229 Compensation allowable.
Profits and Earning Capacity
136.231 Authorized claimants.
136.233 Proof.
136.235 Compensation allowable.
[[Page 69]]
Government Public Services
136.237 Authorized claimants.
136.239 Proof.
136.241 Compensation allowable.
Subpart D_Designation of Source and Advertisement
General
136.301 Purpose.
136.303 Definitions.
Designation of Source
136.305 Notice of designation.
136.307 Denial of designation.
Advertisement
136.309 Advertisement determinations.
136.311 Types of advertisement.
136.313 Content of advertisement.
Authority: 33 U.S.C. 2713, 2714; E.O. 12777, 3 CFR, 1991 Comp., p.
351; 49 CFR 1.46.
Source: CGD 91-035, 57 FR 36316, Aug. 12, 1992, unless otherwise
noted.
Subpart A_General
Sec. 136.1 Purpose and applicability.
(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.
Sec. 136.3 Information.
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, suite 1000, 4200 Wilson Boulevard,
Arlington, Virginia 22203-1804, (703) 235-4756.
Sec. 136.5 Definitions
(a) As used in this part, the following terms have the same meaning
as set forth in sections 1001 and 1007(c) of the Act (33 U.S.C. 2701 and
2707(c)): Claim, claimant, damages, discharge, exclusive economic zone,
facility, foreign claimant, foreign offshore unit, Fund, guarantor,
incident, National Contingency Plan, natural resources, navigable
waters, offshore facility, oil, onshore facility, owner or operator,
person, removal costs, responsible party, State, United States, and
vessel.
(b) As used in this part--
Act means title I of the Oil Pollution Act of 1990 (Pub. L. 101-380;
33 U.S.C. 2701 through 2719).
Director, NPFC, means the person in charge of the U.S. Coast Guard
National Pollution Funds Center or that person's authorized
representative.
FOSC means the Federal On-Scene Coordinator designated under the
National Contingency Plan or that person's authorized representative.
[[Page 70]]
NPFC means the U.S. Coast Guard National Pollution Funds Center,
suite 1000, 4200 Wilson Boulevard, Arlington, Virginia 22203-1804.
Sec. 136.7 Foreign claimants.
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.
Sec. 136.9 Falsification of claims.
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.
[CGD 91-035, 57 FR 36316, Aug. 12, 1992, as amended by CGD 96-052, 62 FR
16703, Apr. 8, 1997]
Subpart B_General Procedure
Sec. 136.101 Time limitations on claims.
(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 National Pollution Funds Center, suite 1000,
4200 Wilson Boulevard, Arlington, Virginia 22203-1804. 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.
[CGD 91-035, 57 FR 36316, Aug. 12, 1992; 57 FR 41104, Sept. 9, 1992]
Sec. 136.103 Order of presentment.
(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 Sec. 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 Sec.
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--
[[Page 71]]
(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 Sec. 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.
[CGD 91-035, 57 FR 36316, Aug. 12, 1992; 57 FR 41104, Sept. 9, 1992]
Sec. 136.105 General requirements for a 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 Sec. 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
[[Page 72]]
damages claimed, the information required under Sec. 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 Sec. 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.
Sec. 136.107 Subrogated claims.
(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.
Sec. 136.109 Removal costs and multiple items of damages.
(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.
Sec. 136.111 Insurance.
(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.
Sec. 136.113 Other compensation.
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.
Sec. 136.115 Settlement and notice to claimant.
(a) Payment in full, or acceptance by the claimant of an offer of
settlement by the Fund, is final and conclusive for all purposes and,
upon payment, constitutes a release of the Fund for the claim. In
addition, acceptance of any compensation from the Fund precludes the
claimant from filing any subsequent action against any person to recover
costs or damages which are the subject of the compensated claim.
Acceptance of any compensation also constitutes an agreement by the
claimant to assign to the Fund any rights, claims, and causes of action
the claimant has against any person for the costs and damages which are
the subject of the compensated claims and to cooperate reasonably with
the Fund in any claim or action by the Fund against any person to
recover the amounts paid by the Fund. The cooperation shall include, but
is not limited to, immediately reimbursing the Fund for any compensation
received from any other source for the same costs and damages and
providing any documentation, evidence, testimony, and other support, as
may be necessary
[[Page 73]]
for the Fund to recover from any person.
(b) Claimant's failure to accept an offer of settlement within 60
days after the date the offer was mailed to the claimant automatically
voids the offer. The Director, NPFC, reserves the right to revoke an
offer at any time.
(c) A claimant will be notified in writing sent by certified or
registered mail whenever a claim against the Fund is denied. The failure
of the Director, NPFC, to make final disposition of a claim within six
months after it is filed shall, at the option of the claimant any time
thereafter, be deemed a final denial of the claim.
(d) The Director, NPFC, upon written request of the claimant or of a
person duly authorized to act on the claimant's behalf, reconsiders any
claim denied. The request for reconsideration must be in writing and
include the factual or legal grounds for the relief requested, providing
any additional support for the claim. The request must be received by
the Director, NPFC, within 60 days after the date the denial was mailed
to the claimant or within 30 days after receipt of the denial by the
claimant, whichever date is earlier. Reconsideration may only be
requested once for each claim denied. The Director, NPFC will provide
the claimant seeking reconsideration with written notification of the
decision within 90 days after receipt of the request for
reconsideration. This written decision is final. The failure of the
Director, NPFC, to make final disposition of a reconsideration within 90
days after it is received shall, at the option of the claimant any time
thereafter, be deemed a final denial of the reconsideration.
Subpart C_Procedures for Particular Claims
Removal Costs
Sec. 136.201 Authorized claimants.
A claim for removal costs may be presented by any claimant.
Sec. 136.203 Proof.
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.
Sec. 136.205 Compensation allowable.
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.
Natural Resources
Sec. 136.207 Authorized claimants.
(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.
Sec. 136.209 Proof.
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
[[Page 74]]
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.
Sec. 136.211 Compensation allowable.
(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.
Real or Personal Property
Sec. 136.213 Authorized claimants.
(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 Sec. 136.233.
Sec. 136.215 Proof.
(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.
Sec. 136.217 Compensation allowable.
(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
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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 Sec. 136.213(b) is limited to that allowable
under Sec. 136.235.
Subsistence Use
Sec. 136.219 Authorized claimants.
(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 Sec. 136.233.
Sec. 136.221 Proof.
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.
Sec. 136.223 Compensation allowable.
(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 Sec. 136.219(b) is limited to that allowable
under Sec. 136.235.
Government Revenues
Sec. 136.225 Authorized claimants.
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 Sec. 136.277, ``revenue'' means taxes, royalties,
rents, fees, and net profit shares.
Sec. 136.227 Proof.
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.
Sec. 136.229 Compensation allowable.
The amount of compensation allowable is the total net revenue
actually lost.
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Profits and Earning Capacity
Sec. 136.231 Authorized claimants.
(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
Sec. 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 Sec. 136.219.
Sec. 136.233 Proof.
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.
Sec. 136.235 Compensation allowable.
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.
Government Public Services
Sec. 136.237 Authorized claimants.
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.
Sec. 136.239 Proof.
In addition to the requirements of subparts A and B of this part, a
claimant must establish--
(a) The nature of the specific public services provided and the need
for those services;
(b) That the services occurred during or after removal activities;
(c) That the services were provided as a result of a discharge of
oil and would not otherwise have been provided; and
(d) The net cost for the services and the methods used to compute
those costs.
Sec. 136.241 Compensation allowable.
The amount of compensation allowable is the net cost of the
increased or additional service provided by the State or political
subdivision.
[[Page 77]]
Subpart D_Designation of Source and Advertisement
General
Sec. 136.301 Purpose.
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.
Sec. 136.303 Definitions.
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 Sec. 136.305.
Designation of Source
Sec. 136.305 Notice of designation.
(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.
Sec. 136.307 Denial of designation.
(a) Within five days after receiving a Notice of Designation under
Sec. 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.
Advertisement
Sec. 136.309 Advertisement determinations.
(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 Sec. 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
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not later than 15 days after the date of the designation made under
Sec. 136.305.
(e) If there is no designation under Sec. 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.
Sec. 136.311 Types of advertisement.
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.
Sec. 136.313 Content of advertisement.
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.
PART 138_FINANCIAL RESPONSIBILITY FOR WATER POLLUTION (VESSELS)--Table
of Contents
Sec.
138.10 Scope.
138.12 Applicability.
138.15 Implementation schedule.
138.20 Definitions.
138.30 General.
138.40 Where to apply for and obtain forms.
138.50 Time to apply.
138.60 Applications, general instructions.
138.65 Issuance and carriage of Certificates.
138.70 Renewal of Certificates.
138.80 Financial responsibility, how established.
138.90 Individual and Fleet Certificates.
138.100 Non-owning operator's responsibility for identification.
138.110 Master Certificates.
138.120 Certificates, denial or revocation.
138.130 Fees.
138.140 Enforcement.
138.150 Service of process.
Appendix A to Part 138--Application Form.
Appendix B to Part 138--Insurance Guaranty Form
Appendix C to Part 138--Master Insurance Guaranty Form
Appendix D to Part 138--Surety Bond Guaranty Form
Appendix E to Part 138--Financial Guaranty Form
Appendix F to Part 138--Master Financial Guaranty Form
Authority: 33 U.S.C. 2716, 2716a; 42 U.S.C. 9608, 9609; sec. 7(b),
E.O. 12580, 3 CFR, 1987 Comp., p. 198; E.O. 12777, 3 CFR 1991 Comp., p.
351; 49 CFR 1.46.
Section 138.30 also issued under the authority of 46 U.S.C. 2103,
14302.
Source: CGD 91-005, 59 FR 34227, July 1, 1994, unless otherwise
noted.
Sec. 138.10 Scope.
This part sets forth the procedures by which an operator of a vessel
may establish and maintain, for itself, and, where the operator is not
the owner or demise charterer, for the owner and demise charterer of the
vessel, evidence of financial responsibility to cover liability of the
owner, operator, and demise charterer arising under--
(a) Section 1002 of the Oil Pollution Act of 1990 (OPA 90) (33
U.S.C. 2702); and
[[Page 79]]
(b) Section 107(a)(1) of the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended (CERCLA) (42 U.S.C.
9607(a)(1)).
[CGD 91-005, 59 FR 34227, July 1, 1994, as amended by CGD 91-005, 61 FR
9274, Mar. 7, 1996]
Sec. 138.12 Applicability.
(a) This part applies to--
(1) A tank vessel of any size, and to 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) A vessel using the navigable waters of the United States or any
port or place subject to the jurisdiction of the United States,
including an offshore facility subject to the jurisdiction of the United
States, except--
(i) A vessel that is 300 gross tons or less; and
(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 part applies to a self-
propelled vessel over 300 gross tons, even if it does not carry
hazardous substances.
(d) This part does not apply to a public vessel.
[CGD 91-005, 59 FR 34227, July 1, 1994, as amended at 61 FR 9274, Mar.
7, 1996]
Sec. 138.15 Implementation schedule.
(a) A tank vessel is subject to the following implementation
schedule:
(1) Until December 28, 1994, a tank vessel is required to carry a
Certificate issued under parts 130, 131, and 132 of this chapter, as may
be applicable to that vessel. On or after that date, and until July 1,
1995, a non-self-propelled tank vessel must carry a Certificate issued
under parts 130, 131, and 132 of this chapter, as may be applicable to
that vessel, unless it carries a Certificate issued under this part.
(2) A self-propelled tank vessel to which this part applies and
which carries a valid Certificate issued under part 130 of this chapter
may not operate on or after December 28, 1994, unless the operator of
that vessel has submitted to the Director, NPFC, before that date
acceptable evidence of financial responsibility applicable to that
vessel under this part. A self-propelled tank vessel covered by that
evidence of financial responsibility before December 28, 1994, may
continue to operate with the Certificate issued under part 130 of this
chapter. The expiration date of the Certificate issued under part 130 of
this chapter for that vessel will be deemed to be December 28, 1995,
regardless of the expiration date appearing on the Certificate.
Thereafter, a Certificate issued under this part is required.
(3) A self-propelled tank vessel to which this part applies, but
which does not carry a valid Certificate issued under part 130 of this
chapter before December 28, 1994, may not operate on or after that date
unless it carries a Certificate under this part.
(4) A non-self-propelled tank vessel to which this part applies may
not operate on or after July 1, 1995, without a Certificate issued under
this part. A non-self-propelled tank vessel may continue to operate with
a Certificate issued under parts 130, 131, and 132 of this chapter, as
may be applicable to that vessel, until that date.
(b) A vessel that is not a tank vessel (non-tank vessel) is subject
to the following implementation schedule:
(1) Until December 28, 1997, a non-tank vessel is required to carry
a Certificate issued under parts 130 and 132 of this chapter, as may be
applicable to that vessel, unless that vessel carries a Certificate
issued under this part. On or after December 28, 1997, each non-tank
vessel subject to this part must carry a Certificate issued under this
part.
[[Page 80]]
(2) A Certificate is issued, on and after December 28, 1994, and
before December 28, 1997, under parts 130 and 132 of this chapter only
to replace a lost Certificate or to replace a Certificate due to a
vessel or operator name change (a change of legal identity, such as
reincorporation or other reorganization, is not considered a name
change). The expiration date that will appear on the replacement
Certificate will be the same as the expiration date of the Certificate
being replaced. During that three-year time period, with respect to part
132 of this chapter, the expiration date that will appear on a
Certificate being replaced, or on an existing Certificate being renewed,
will be adjusted to coincide with the expiration date of the
Certificate, if any, for that vessel issued under part 130 of this
chapter.
(3) A non-tank vessel that has a Certificate issued before December
28, 1994, under part 130 of this chapter is not required to carry a
Certificate under this part until the date of expiration of the
Certificate issued under part 130 of this chapter.
(4) Except as provided in paragraph (b)(5) of this section, a
Certificate issued on and after July 1, 1994, and before December 28,
1994, under parts 130 and 132 of this chapter is issued with an
expiration date three years from the date of issuance.
(5) If a Certificate issued under part 130 of this chapter with an
expiration date of December 28, 1994, or later is surrendered, and a new
Certificate is requested for the same non-tank vessel before December
28, 1994, the new Certificate will have the same expiration date as that
of the surrendered Certificate.
(c) On or after July 1, 1994, a vessel that is subject to either
part 131 or 132, or both, of this chapter but that is not subject to
part 130 of this chapter because the vessel is 300 gross tons or less is
not required to comply with part 131 or 132 of this chapter, unless that
vessel is subject to this part under Sec. 138.12(a)(1).
Sec. 138.20 Definitions.
(a) As used in this part (including the appendices to this part),
the following terms have the same 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 Sec.
138.10(b)(1): claimant, damages, discharge, exclusive economic zone,
navigable waters, mobile offshore drilling unit, natural resources,
offshore facility, oil, person, remove, removal, removal costs, 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 Sec. 138.10(b)(2): claimant,
damages, environment, hazardous substance, navigable waters, natural
resources, person, release, remove, removal, and United States.
(b) As used in this part (including the appendices to this part)--
Acts means OPA 90 and CERCLA.
Applicant means an operator who has applied for a Certificate or for
the renewal of a Certificate under this part.
Application means ``Application for Vessel Certificate of Financial
Responsibility (Water Pollution)'', as illustrated in Appendix A of this
part.
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, as amended (42 U.S.C. 9601 et seq.).
Certificant means an operator who has been issued a Certificate
under this part.
Certificate means a ``Vessel Certificate of Financial Responsibility
(Water Pollution)'' issued under this part, unless otherwise indicated.
Director, NPFC, means the head of the U.S. Coast Guard National
Pollution Funds Center (NPFC).
Financial responsibility means statutorily required financial
ability to meet 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
[[Page 81]]
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 who provides evidence of financial
responsibility, under the Acts, on behalf of a vessel owner, operator,
and demise charterer. A vessel operator who can qualify as a self-
insurer may act as both a self-insurer of vessels it operates and as a
financial guarantor of other vessels, under Sec. 138.80(b)(4).
Hazardous material means a liquid material or substance that is--
(1) Flammable or combustible;
(2) Designated a hazardous substance under section 311(b) of the
Federal Water Pollution Control Act (33 U.S.C. 1221); or
(3) Designated a hazardous material under section 104 of the
Hazardous Material Transportation Act (49 App. U.S.C. 1803).
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, shipowners' protection and
indemnity associations, or other persons, each of which must be
acceptable to the Coast Guard.
Master Certificate means a Certificate issued under this part to a
person acting as vessel operator in its capacity as a builder, repairer,
scrapper, or seller of vessels.
Offshore supply vessel has the same meaning as set forth in 46
U.S.C. 2101.
OPA 90 means title I of 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.
Owner means any person holding legal or equitable title to a vessel.
In a case where a 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. For purposes of CERCLA
only, ``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.
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 or 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 Sec.
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.
[CGD 91-005, 59 FR 34227, July 1, 1994, as amended by CGD 91-005, 61 FR
9274, Mar. 7, 1996]
Sec. 138.30 General.
(a) The regulations in this part set forth the procedures whereby an
operator of a vessel subject to this part can demonstrate that it and
the owner and
[[Page 82]]
demise charterer of the vessel are financially able to meet potential
liability for costs and damages in the amounts established by this part.
The owner, operator, and demise charterer are strictly, jointly, and
severally liable for the costs and damages resulting from an incident or
a release or threatened release, but together they need only establish
and maintain an amount of financial responsibility equal to the single
limit of liability per incident, release, or threatened release. Only
that portion of the evidence of financial responsibility under this part
with respect to--
(1) OPA 90 is required to be made available by a guarantor for the
costs and damages related to an incident where there is not also a
release or threatened release; and
(2) CERCLA is required to be made available by a guarantor 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 amount of financial responsibility
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 the owner is
responsible for its operation, the owner is considered to be the
operator and shall submit the application for a Certificate. In all
other cases, the vessel operator shall submit the application. A time or
voyage charterer that does not assume responsibility for the operation
of the vessel is not considered an operator for the purposes of this
part.
(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 tonnage is determined under the Dual
Measurement System in 46 CFR part 69, subpart D, the higher gross
tonnage is the regulatory tonnage for the purposes of 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 amount of
financial responsibility, and limit of liability under section 1004(a)
of OPA 90 and under section 107(a) of CERCLA.
(2) For all other United States vessels. The vessel's gross tonnage
under 46 CFR part 69 is used for determining both the 300 gross ton
threshold, the required amount of financial responsibility, and limit of
liability under section 1004(a) of OPA 90 and under section 107(a) of
CERCLA. If the vessel is measured 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 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
amount of financial responsibility, and limit of liability under section
1004(a) of OPA 90 and under section 107(a) of CERCLA.
(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 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 amount of financial responsibility, and limit of liability
under section 1004(a) of OPA 90 and under section 107(a) of CERCLA. 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
[[Page 83]]
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 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
amount of financial responsibility, and limit of liability under section
1004(a) of OPA 90 and under section 107(a) of CERCLA. 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 amount of financial responsibility, and limit
of liability under section 1004(a) of OPA 90 and under section 107(a) of
CERCLA. 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 illustrated in the
appendices to this part. 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 shall 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.
Sec. 138.40 Where to apply for and obtain forms.
(a) An operator shall file an application for a Certificate and a
renewal of a Certificate together with fees and evidence of financial
responsibility, with the Coast Guard National Pollution Funds Center at
the following address: U.S. Coast Guard, National Pollution Funds Center
(cv), 4200 Wilson Boulevard, Suite 1000, Arlington, VA 22203-1804,
telephone (202) 493-6780, Telefax (202) 493-6781.
(b) Forms may be obtained at the address in paragraph (a) of this
section, and all requests for assistance, including telephone inquiries,
in completing applications should be directed to the U.S. Coast Guard at
that same address.
[CGD 91-005, 59 FR 34227, July 1, 1994, as amended by USCG-1999-5832, 64
FR 34714, June 29, 1999]
Sec. 138.50 Time to apply.
(a) A vessel operator who wishes to obtain a Certificate shall file
a completed application form, evidence of financial responsibility and
appropriate fees at least 21 days prior to the date the Certificate is
required. The Director, NPFC, may waive this 21-day requirement.
(b) The Director, NPFC, generally processes applications in the
order in which they are received at the National Pollution Funds Center.
Sec. 138.60 Applications, general instructions.
(a) The application for a Certificate (Form CG-5585) is illustrated
in Appendix A of this part. An application and all supporting documents
must be in English. All monetary terms must be expressed in United
States dollars.
(b) An authorized official of the applicant shall sign the
application. The title of the signer must be shown in the space provided
on the application.
(c) The application must be accompanied by a written statement
providing authority to sign, where the signer is not disclosed 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.
[[Page 84]]
(d) 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 shall, within five business days
of becoming aware of the change, notify the Director, NPFC, in writing,
of the change.
Sec. 138.65 Issuance and carriage of Certificates.
Upon the satisfactory demonstration of financial responsibility and
payment of fees, the Director, NPFC, issues a Vessel Certificate of
Financial Responsibility (Water Pollution), the original of which
(except as provided in Sec. Sec. 138.90 (a) and (b) and 138.110(f)) is
to be carried aboard the vessel covered by the Certificate. The carriage
of a valid Certificate or authorized copy indicates compliance with
these regulations. Failure to carry a valid Certificate or authorized
copy subjects the vessel to enforcement action, except where a
Certificate is removed temporarily from a vessel for inspection by a
United States Government official.
Sec. 138.70 Renewal of Certificates.
(a) An operator shall file a written application for the renewal of
a Certificate at least 21 days, but not earlier than 90 days, before the
expiration date of the Certificate. Except as provided in paragraph (c)
of this section, a letter may be used for this purpose. The Director,
NPFC, may waive this 21-day requirement.
(b) The applicant shall identify in the renewal application any
changes which have occurred since the original application for a
Certificate was filed, and set forth the correct information in full.
(c) An applicant that applies for the first time for a Certificate
issued under this part to replace a Certificate issued under part 130 of
this chapter shall submit an application form illustrated in Appendix A
of this part. An applicant is not required to pay an application fee
under Sec. 138.130(c) for this first-time application.
Sec. 138.80 Financial responsibility, how established.
(a) General. In addition to submitting an application and fees, an
applicant shall submit, or cause to be submitted, evidence of financial
responsibility in an amount determined under Sec. 138.80(f). A
guarantor may submit directly to the Director, NPFC, the evidence of
financial responsibility.
(b) Methods. An applicant shall establish 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, illustrated in Appendix B of this part (or, when
applying for a Master Certificate, a master insurance guaranty form CG-
5586-1, illustrated in Appendix C of this part), executed by not more
than four insurers that have been found acceptable by and remain
acceptable to the Director, NPFC, for purposes of this part.
(2) Surety bond. By filing with the Director, NPFC, a surety bond
guaranty form CG-5586-2, illustrated in Appendix D of this part,
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 part.
(3) Self-insurance. By filing the financial statements specified in
paragraph (b)(3)(i) of this section for the applicant's last fiscal year
preceding the date of application and by demonstrating that the
applicant maintains, in the United States, working capital and net worth
each in amounts equal to or greater than the total applicable amount
calculated in accordance with Sec. 138.80(f), 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. After the initial submission, for
each of the applicant's fiscal years, the applicant or certificant shall
submit statements as follows:
(i) Initial and annual submissions. An applicant or certificant
shall submit
[[Page 85]]
annual, current, and audited non-consolidated financial statements
prepared in accordance with Generally Accepted Accounting Principles,
and audited by an independent Certified Public Accountant. These
financial statements must be audited 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 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 submissions. When the applicant's or certificant's
demonstrated net worth is not at least ten times the total applicable
amount of financial responsibility, the applicant's or certificant's
Treasurer (or equivalent official) shall file affidavits covering the
first six months of the applicant's or certificant's 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 amount of financial
responsibility as determined in accordance with this part.
(iii) Additional submissions. An applicant or certificant--
(A) Shall, upon request of the Director, NPFC, submit additional
financial information; and
(B) Who establishes financial responsibility under paragraph (b)(3)
of this section shall notify the Director, NPFC, within five business
days of the date the applicant or certificant knows, or has reason to
believe, that the working capital or net worth has fallen below the
amounts required by this part.
(iv) Time for submissions. 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 within 30 days after
the close of the applicable six-month period. Upon written request, the
Director, NPFC, may grant an extension of the time limits for filing the
annual financial statements or affidavits. An applicant or certificant
that requests an extension must set forth the reason for the extension
and deliver the request at least 15 days before the statements or
affidavits 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 revoke a certificate
for failure of the certificant to submit 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 making 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 amount of financial responsibility and
[[Page 86]]
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, illustrated in Appendix E of this
part (when applying for a Master Certificate, a Master Financial
Guaranty Form CG-5586-4, illustrated in Appendix F of this part),
executed by not more than four financial guarantors, such as a parent or
affiliate acceptable to the Coast Guard. A financial guarantor shall
comply with all of the self-insurance provisions of paragraph (b)(3) of
this section. In addition, a person that is a financial guarantor for
more than one applicant or certificant shall have working capital and
net worth no less than the aggregate total applicable amounts of
financial responsibility provided as a guarantor for each applicant or
certificant, plus the amount required to be demonstrated by a self-
insurer under this part, if 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
the Director, NPFC, to 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 shall submit the request to the Director, NPFC, at least
45 days prior to the date the Certificate is required. The applicant
shall 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 applicant is able to fulfill its
obligation 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 illustrated in Appendix B of this part). An
applicant that makes a request under this paragraph shall 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. Ten or fewer sureties (including lead sureties)
may jointly execute a surety bond guaranty form. Four or fewer financial
guarantors may jointly execute a financial guaranty form. 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 is acceptable unless
none of the participants specifies a percent of participation. 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 shall ensure that each form
submitted under this part sets forth in full the correct legal name of
the vessel operator to whom a certificate is to be issued.
(d) Direct Action. (1) Acknowledg ment. Any evidence of financial
responsibility submitted under this part must contain an acknowledgment
by the insurer or other guarantor that an action in court by a claimant
(including a claimant by right of subrogation) for
[[Page 87]]
costs and damage claims 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 relating to the amount of a claim or claims, filed
in any action in any court or other proceeding, that exceeds the amount
of the guaranty with respect to an incident or with respect to a release
or threatened release.
(iv) A defense relating to 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 part shall 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 shall 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 part. In the event of any finding that
liability of a guarantor exceeds the amount of the guaranty provided
under this part, that guaranty is considered null and void with respect
to that excess.
(e) Public access to data. Financial data filed 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. (1) The applicable amount under OPA 90
is determined as follows:
(i) For a tank vessel (except a tank vessel on which no liquid
hazardous material in bulk is being carried as cargo or cargo residue,
and on which the only oil carried as cargo or cargo residue is an animal
fat or vegetable oil, as those terms are used in section 2 of the Edible
Oil Regulatory Reform Act (Pub. L. 104-55)).
(A) Over 300 gross tons (and a vessel of 300 gross tons or less
using the waters of the United States Exclusive Economic Zone to
transship or lighter oil destined for a place subject to the
jurisdiction of the United States, as specified in Sec. 138.12(a)(1))
but not exceeding 3,000 gross tons, the greater of $2,000,000 or $1,200
per gross ton; and
(B) Over 3,000 gross tons, the greater of $10,000,000 or $1,200 per
gross ton.
(ii) For a vessel other than a tank vessel under paragraph (f)(1)(i)
of this section that is over 300 gross tons or that is 300 gross tons or
less using the waters of the Exclusive Economic Zone of the United
States to transship or lighter oil destined for a place subject to the
jurisdiction of the United States, the greater of $500,000 or $600 per
gross ton.
(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 maximum applicable amount
calculated under paragraph (f)(1) of this section plus maximum
applicable amount calculated under paragraph (f)(2) of this section.
[CGD 91-005, 59 FR 34227, July 1, 1994, as amended by CGD 91-005, 61 FR
9274, Mar. 7, 1996]
[[Page 88]]
Sec. 138.90 Individual and Fleet Certificates.
(a) The Director, NPFC, issues an individual Certificate for each
vessel listed on a completed application 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 Sec. 138.110. Each Certificate of any type issued under
this part is issued only in the name of a vessel operator and is
effective for not more than three years from the date of issue, 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 shall also submit or
cause to be submitted acceptable evidence of financial responsibility,
if required, and certification fees for these additional vessels. The
certificant shall carry the original individual Certificate on the
vessel named on the Certificate, except that a legible copy (certified
as accurate by a notary public or other person authorized to take oaths
in the United States) may be carried instead of the original if the
vessel is an unmanned barge and does not have a document carrying device
which the vessel operator believes would offer suitable protection for
the original Certificate. If a notarized copy of an individual
Certificate is carried aboard a barge, the Certificate shall retain the
original in the United States and shall make it readily available for
inspection by United States Government officials.
(b) An operator of two or more barges that are not tank vessels and
that from time to time may be subject to this part (e.g., a hopper barge
over 300 gross tons when carrying oily metal shavings or similar cargo),
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, may apply
to the Director, NPFC, for issuance of a Fleet Certificate. A legible
copy of the Fleet Certificate, certified as accurate by a notary public
or other person authorized to take oaths in the United States, must be
carried on each barge when subject to this part. In addition, the
certificant shall retain in the United States the original Fleet
Certificate and shall make it readily available for inspection by United
States Government officials. The original Fleet Certificate, when
invalid, must be completed on the reverse side and returned immediately
to the Director, NPFC, and all copies must be destroyed. When the
certificant ceases to be responsible for a barge covered by a Fleet
Certificate, the certificant shall immediately destroy the copy of the
Fleet Certificate carried aboard that barge.
(c) A person shall not make any alteration on any Certificate issued
under this part or copy of that Certificate, except the notarized
certifications permitted in Sec. 138.110(f) and paragraphs (a) and (b)
of this section. A Certificate or copy containing any alteration is
void.
(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 shall
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
shall be reported as soon as possible by telefax or other electronic
means to the Director, NPFC, and followed by a written notice sent
within three business days.
(e) Except as provided in Sec. 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, and any copies of the
Certificate, are void and their further use is prohibited. In that case,
the certificant shall, within 10 days of the Certificate becoming void,
complete the reverse side of the original individual Certificate naming
the involved vessel and return the Certificate to the Director, NPFC. If
the Certificate cannot be returned
[[Page 89]]
because it has been lost or destroyed, the certificant shall, within
three business days, 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 certificated under this part, 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
individual Certificate remains in effect. A temporary new individual
Certificate is not required. A transferee is encouraged to require the
transferring certificant to acknowledge in writing that the transferring
certificant agrees to remain responsible for pollution liabilities.
Sec. 138.100 Non-owning operator's responsibility for identification.
(a) Each operator that is not an owner of a vessel certificated
under this part, other than an unmanned barge, shall 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 to
a United States Government official.
Sec. 138.110 Master Certificates.
(a) A contractor or other person who is responsible for a vessel in
the capacity of a builder, scrapper, lessor, or seller (including a
repairer who agrees to be responsible for a vessel under its custody)
may apply for a Master Certificate instead of applying for an individual
Certificate for each vessel. A Master Certificate covers all of the
vessels subject to this part 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 shall submit an
application form in the manner prescribed by Sec. 138.60. An applicant
shall establish evidence of financial responsibility in accordance with
Sec. 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 must be completed in full, except for Item 5. The applicant
shall 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
part.
(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 three 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.
[[Page 90]]
(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 amount of financial responsibility
(above that provided for issuance of the existing Master Certificate),
the certificant shall 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 shall
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.
(f) The certificant shall ensure that a legible copy of the Master
Certificate (certified as accurate by a notary public or other person
authorized to take oaths in the United States) is carried aboard each
vessel covered by the Master Certificate. The certificant shall retain
the original Master Certificate at a location in the United States and
shall make it readily available for inspection by United States
Government officials.
(g) Upon revocation or other invalidation of the Master Certificate,
the certificant shall return the original Certificate within 10 days to
the Director, NPFC. The certificant shall ensure that all copies of the
Certificate are destroyed.
[CGD 91-005, 59 FR 34227, July 1, 1994, as amended by CGD 91-005, 61 FR
9275, Mar. 7, 1996]
Sec. 138.120 Certificates, denial or revocation.
(a) The Director, NPFC, may deny a Certificate when an applicant--
(1) Willfully or knowingly makes a false statement in connection
with an application for an initial or renewal Certificate;
(2) Fails to establish acceptable evidence of financial
responsibility as required by this part;
(3) Fails to pay the required application or certificate 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 part; or
(5) Fails to timely file 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 part;
(2) Fails to comply with or respond to lawful inquiries,
regulations, or orders of the Coast Guard pertaining to the activities
subject to this part; or
(3) Fails to timely file 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 part;
(2) Is no longer the responsible operator of the vessel in question;
or
(3) Alters any Certificate or copy of a Certificate except as
permitted by this part in connection with notarized certifications of
copies.
(d) The Director, NPFC, advises the applicant or certificant, in
writing, of the intention to deny or revoke a Certificate under
paragraph (a) or (b) of this section and states the reason therefor.
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
[[Page 91]]
on failure to timely file the required financial statements, data,
notifications, or affidavits, the revocation is effective 10 days after
the date of the notice of intention to revoke, unless, before
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
part. 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 shall file a request for
reconsideration, in writing, to the Director, NPFC, within 20 days of
the date of the denial or revocation. The certificant shall state the
reasons for reconsideration. The Director, NPFC, issues a written
decision on the request within 30 days of receipt, except that failure
to issue a decision within 30 days shall be deemed an affirmance of a
denial or revocation. Until the Director, NPFC, issues this decision, a
revoked certificate remains invalid. A decision by the Director, NPFC,
affirming a denial or revocation, is final agency action.
Sec. 138.130 Fees.
(a) The Director, NPFC, will not issue a Certificate until the fees
set forth in paragraphs (c) and (d) of this section have been paid.
(b) Fees must be paid in United States currency by check, draft, or
postal money order made payable to the ``U.S. Coast Guard''. Cash will
not be accepted.
(c) Except as provided in Sec. 138.70(c), an applicant that submits
an application for the first time under this part, shall pay an initial,
non-refundable application fee of $150 for each type of application
(i.e., individual Certificate(s), Fleet Certificate, and Master
Certificate). An applicant that submits an application for an additional
(i.e., supplemental) individual Certificate, or to replace, amend or
renew an existing Certificate, is not required to pay a new application
fee. However, if an applicant for any reason withdraws or permits the
withdrawal of an application for an individual Certificate(s) and the
applicant holds no valid individual Certificate(s), in order to reapply
for an individual Certificate(s) covering the same or different vessels
the applicant shall submit a new application form and an application fee
of $150. Similarly, an applicant shall submit a new application form and
fee to obtain a new Fleet or Master Certificate following invalidation
of a Fleet or Master Certificate.
(d) In addition to the application fee of $150, an applicant shall
also pay a certification fee of $80 for each Certificate requested. An
applicant shall submit the certification fee for each vessel listed in,
or later added to, an application for an individual Certificate(s). An
applicant shall submit the $80 certification fee to renew or to reissue
a Certificate for any reason, including, but not limited to, a vessel or
operator name change or a lost certificate.
(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 $50 or more. However,
any overpayments not refunded will be credited, for a period of three
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 part.
Sec. 138.140 Enforcement.
(a) Any person who fails to comply with this part with respect to
evidence of financial responsibility under section 1016 of OPA 90 (33
U.S.C. 2716) is
[[Page 92]]
subject to a civil penalty. In addition, under section 4303(b) of that
Act (33 U.S.C. 2716a(b)), the Attorney General may secure such relief as
may be necessary to compel compliance with this part including
termination of operations. Further, any person who fails to comply with
this part with respect to evidence of financial responsibility under
section 108(a)(1) of CERCLA (42 U.S.C. 9608(a)(1)), is subject to a
Class I administrative civil penalty and a Class II administrative civil
penalty or judicial penalty.
(b) The Secretary of the Treasury shall withhold or revoke the
clearance required by 46 U.S.C. App. 91 to any vessel subject to this
part that does not produce evidence of financial responsibility required
by this part.
(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 part, which, upon request, does not produce
evidence of financial responsibility required by this part.
(d) Any vessel subject to this part which is found in the navigable
waters without the necessary evidence of financial responsibility is
subject to seizure by and forfeiture to the United States.
(e) Knowingly and willfully using an invalid Certificate, or any
copy thereof, is fraud.
[CGD 91-005, 59 FR 34227, July 1, 1994, as amended by CGD 96-052, 62 FR
16703, Apr. 8, 1997]
Sec. 138.150 Service of process.
(a) When executing the forms required by this part, each applicant
and guarantor shall designate thereon a person located in the United
States as its agent for service of process for purposes of this part and
for receipt of notices of designations and presentations of claims under
the Acts (collectively referred to as ``service of process''). Each
designated agent shall acknowledge the designation in writing unless the
agent has already furnished the Director, NPFC, with a ``master'' (i.e.,
blanket) concurrence showing that it 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 shall notify the Director, NPFC, of the change and furnish the
relevant information, including the new agent's acknowledgment in
accordance with paragraph (a) of this section, if a ``master''
concurrence is not applicable. In the event of death, disability, or
unavailability of a designated agent, the applicant, certificant, or
guarantor shall 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 shall submit the new designation to
the Director, NPFC. The Director, NPFC, may 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 can not 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 (by registered
mail, at its 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.
[[Page 93]]
Appendix A to Part 138--Application Form
[GRAPHIC] [TIFF OMITTED] TC18OC91.006
[[Page 94]]
[GRAPHIC] [TIFF OMITTED] TR01JY94.084
[[Page 95]]
[GRAPHIC] [TIFF OMITTED] TR01JY94.085
[[Page 96]]
[GRAPHIC] [TIFF OMITTED] TR01JY94.086
[[Page 97]]
[GRAPHIC] [TIFF OMITTED] TR01JY94.087
[[Page 98]]
Appendix B to Part 138--Insurance Guaranty Form
[GRAPHIC] [TIFF OMITTED] TC18OC91.007
[[Page 99]]
[GRAPHIC] [TIFF OMITTED] TR07MR96.007
[[Page 100]]
[GRAPHIC] [TIFF OMITTED] TR07MR96.008
[[Page 101]]
[GRAPHIC] [TIFF OMITTED] TR07MR96.009
[[Page 102]]
[GRAPHIC] [TIFF OMITTED] TR07MR96.010
[[Page 103]]
[GRAPHIC] [TIFF OMITTED] TR07MR96.011
[[Page 104]]
[GRAPHIC] [TIFF OMITTED] TR07MR96.012
[CGD 91-005, 61 FR 9276, Mar. 7, 1996]
[[Page 105]]
Appendix C to Part 138--Master Insurance Guaranty Form
[GRAPHIC] [TIFF OMITTED] TR07MR96.013
[[Page 106]]
[GRAPHIC] [TIFF OMITTED] TR07MR96.014
[[Page 107]]
[GRAPHIC] [TIFF OMITTED] TR07MR96.015
[[Page 108]]
[GRAPHIC] [TIFF OMITTED] TR07MR96.016
[[Page 109]]
[GRAPHIC] [TIFF OMITTED] TR07MR96.017
[CGD 91-005, 61 FR 9283, Mar. 7, 1996]
[[Page 110]]
Appendix D to Part 138--Surety Bond Guaranty Form
[GRAPHIC] [TIFF OMITTED] TC18OC91.009
[[Page 111]]
[GRAPHIC] [TIFF OMITTED] TR07MR96.019
[GRAPHIC] [TIFF OMITTED] TR07MR96.020
[[Page 112]]
[GRAPHIC] [TIFF OMITTED] TR07MR96.021
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[GRAPHIC] [TIFF OMITTED] TR07MR96.022
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[GRAPHIC] [TIFF OMITTED] TR07MR96.023
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[GRAPHIC] [TIFF OMITTED] TR07MR96.024
[[Page 116]]
[GRAPHIC] [TIFF OMITTED] TR07MR96.025
[CGD 91-005, 61 FR 9288, Mar. 7, 1996]
[[Page 117]]
Appendix E to Part 138--Financial Guaranty Form
[GRAPHIC] [TIFF OMITTED] TC18OC91.010
[[Page 118]]
[GRAPHIC] [TIFF OMITTED] TR07MR96.027
[[Page 119]]
[GRAPHIC] [TIFF OMITTED] TR07MR96.028
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[GRAPHIC] [TIFF OMITTED] TR07MR96.029
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[GRAPHIC] [TIFF OMITTED] TR07MR96.030
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[GRAPHIC] [TIFF OMITTED] TR07MR96.031
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[GRAPHIC] [TIFF OMITTED] TR07MR96.032
[CGD 91-005, 61 FR 9296, Mar. 7, 1996]
[[Page 124]]
Appendix F to Part 138--Master Financial Guaranty Form
[GRAPHIC] [TIFF OMITTED] TC18OC91.011
[[Page 125]]
[GRAPHIC] [TIFF OMITTED] TR07MR96.034
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[GRAPHIC] [TIFF OMITTED] TR07MR96.035
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[GRAPHIC] [TIFF OMITTED] TR07MR96.036
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[GRAPHIC] [TIFF OMITTED] TR07MR96.037
[CGD 91-005, 61 FR 9303, Mar. 7, 1996]
[[Page 129]]
INDEX
SUBCHAPTER M_MARINE POLLUTION FINANCIAL RESPONSIBILITY AND
COMPENSATION
Editorial Note: This listing is provided for informational purposes
only. It is compiled and kept up-to-date by the Coast Guard, Department
of Homeland Security, and is revised through July 1, 2005.
Section
A
Access, Denial, and Detention
Appeal provisions................................................135.405
Certificates of Financial Responsibility, access to vessel.......135.401
Certificates of Financial Responsibility, sanctions for failure to
produce..........................................................135.403
Advertisement, designation of source
Advertisement determinations.....................................136.309
Contents of......................................................136.313
Definitions......................................................136.303
Denial of designation............................................136.307
Notice of designation............................................136.305
Purpose..........................................................136.301
Types of.........................................................136.311
Applicability, Financial Responsibility for Water Pollution
(vessels)
138.12
Applicability, Offshore Oil Pollution Compensation Fund
135.3
Applicability, Offshore Facilities, financial responsibility for
135.201
Applications
Fees..............................................................130.13
General instructions.......................................130.6, 138.60
Time to apply......................................................130.5
Where to apply and obtain forms....................................130.4
C
Certificates
Denial or revocation.....................................130.12, 138.120
Enforcement..............................................130.14, 138.140
Fees.............................................................138.130
Forms and where to apply..........................................138.40
Individual and Fleet..............................................138.90
Individual.........................................................130.9
Issuance and carriage.............................................138.65
Master...................................................130.11, 138.110
Renewal....................................................130.7, 138.70
Time to apply.....................................................138.50
Certification
135.215
Claims, particular procedures for Government Public Services
Allowable compensation...........................................136.241
Authorized claimants.............................................136.237
Proof............................................................136.239
Claims, particular procedures for Government Revenues
[[Page 130]]
Allowable compensation...........................................136.229
Authorized claimants.............................................136.225
Proof............................................................136.227
Claims, particular procedures for Natural Resources
Allowable compensation...........................................136.211
Authorized claimants.............................................136.207
Proof............................................................136.209
Claims, particular procedures for Profits and Earning Capacity
Allowable compensation...........................................136.235
Authorized claimants.............................................136.231
Proof............................................................136.233
Claims, particular procedures for Real or Personal Property
Allowable compensation...........................................136.217
Authorized claimants.............................................136.213
Proof............................................................136.215
Claims, particular procedures for Removal Costs
Allowable compensation...........................................136.205
Authorized claimants.............................................136.201
Proof............................................................136.203
Claims, particular procedures for Subsistence Use
Allowable compensation...........................................136.223
Authorized claimants.............................................136.219
Proof............................................................136.221
Compensation, Other
136.113
Conduct of removal actions
133.17
D
Dates
130.0
Definitions
133.3, 135.5, 136.5, 138.20
E
Evidence of Financial Responsibility
Guaranty as evidence.............................................135.209
Insurance as evidence............................................135.207
Indemnity as evidence............................................135.210
Submission of....................................................135.204
Surety bond as evidence..........................................135.211
F
Falsification of claims
136.9
Fees
Levy and payment of barrel fee on OCS oil........................135.103
Purpose..........................................................135.101
Financial Responsibility
Amount required..................................................135.203
Applicability....................................................135.201
Certification....................................................135.215
Certificates, denial, or revocation..............................135.223
Guaranty as evidence.............................................135.209
Insurance as evidence............................................135.207
Indemnity as evidence............................................135.210
Methods of establishing..........................................135.205
Notification of changes affecting certification..................135.219
Qualification as self-insurer....................................135.213
Reapplication for certification..................................135.221
Submission of evidence...........................................135.204
[[Page 131]]
Surety bond as evidence..........................................135.211
Financial responsibility for water pollution (vessels)
Part 138
Financial responsibility for water pollution
Part 130
Financial responsibility, how established
130.8
Additional submissions.............................................130.8
Direct action......................................................130.8
Failure to submit..................................................130.8
Forms, general.....................................................130.8
General............................................................130.8
Guaranty...........................................................130.8
Initial and annual submissions.....................................130.8
Insurance..........................................................130.8
Public access......................................................130.8
Self-insurance.....................................................130.8
Semi-annual submissions............................................130.8
Time for submissions...............................................130.8
Foreign claimants
136.7
Forms
Application.......................................Appendix A to Part 138
Financial Guaranty................................Appendix E to Part 138
Insurance Guaranty................................Appendix B to Part 138
Master Financial Guaranty.........................Appendix F to Part 138
Master Insurance Guaranty.........................Appendix C to Part 138
Surety Bond Guaranty..............................Appendix D to Part 138
Fund
Address............................................................135.9
Administrator, delegation..........................................135.7
Funding
Determination of eligibility for..................................133.15
Removal actions eligible for......................................133.13
G
General Procedure
General requirements for a claim.................................136.105
Insurance........................................................136.111
Order of presentment.............................................136.103
Other compensation...............................................136.113
Removal costs and multiple items of damages......................136.109
Settlement and notice to claimant................................136.115
Subrogated claims................................................136.107
Time limitations on claims.......................................136.101
I
Implementation schedule
138.15
Information
136.3
Investigation to determine the source and responsible party
133.23
N
Non-owning operator's responsibility for identification
138.100
Notification of Governor's designee
133.25
Notification of pollution incidents
135.303
O
Offshore oil pollution compensation fund
Part 135
Oil spill liability trust fund; claims, procedures; Designation of
source; and advertisement
Part 136
[[Page 132]]
Oil spill liability trust fund; state access
Part 133
Order of presentment
136.103
P
Purpose
133.1
R
Recordkeeping
133.19
Retention
133.21
Requests
Amount.............................................................133.7
Contents..........................................................133.11
General............................................................133.5
Where made.........................................................133.9
S
Scope
138.10
Service of Process
130.15, 138.150
[[Page 133]]