FINANCIAL RESPONSIBILITY FOR WATER POLLUTION (VESSELS)

[Title 33 CFR 138]
[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]
[Part 138 - FINANCIAL RESPONSIBILITY FOR WATER POLLUTION (VESSELS)]
[From the U.S. Government Printing Office]

33NAVIGATION AND NAVIGABLE WATERS22005-07-012005-07-01falseFINANCIAL RESPONSIBILITY FOR WATER POLLUTION (VESSELS)138PART 138NAVIGATION AND NAVIGABLE WATERSCOAST GUARD, DEPARTMENT OF HOMELAND SECURITY (CONTINUED)MARINE POLLUTION FINANCIAL RESPONSIBILITY AND COMPENSATION
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

[[Page 113]]

[GRAPHIC] [TIFF OMITTED] TR07MR96.022

[[Page 114]]

[GRAPHIC] [TIFF OMITTED] TR07MR96.023

[[Page 115]]

[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

[[Page 120]]

[GRAPHIC] [TIFF OMITTED] TR07MR96.029

[[Page 121]]

[GRAPHIC] [TIFF OMITTED] TR07MR96.030

[[Page 122]]

[GRAPHIC] [TIFF OMITTED] TR07MR96.031

[[Page 123]]

[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

[[Page 126]]

[GRAPHIC] [TIFF OMITTED] TR07MR96.035

[[Page 127]]

[GRAPHIC] [TIFF OMITTED] TR07MR96.036

[[Page 128]]

[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

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

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

Dates
130.0
Definitions
133.3, 135.5, 136.5, 138.20

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

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

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

Implementation schedule
138.15
Information
136.3
Investigation to determine the source and responsible party
133.23

Non-owning operator's responsibility for identification
138.100
Notification of Governor's designee
133.25
Notification of pollution incidents
135.303

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

Purpose
133.1

Recordkeeping
133.19
Retention
133.21
Requests
Amount.............................................................133.7
Contents..........................................................133.11
General............................................................133.5
Where made.........................................................133.9

Scope
138.10
Service of Process
130.15, 138.150

[[Page 133]]