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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Rules and Regulations 28802 proposing further changes to part 138, subpart A. Six comments were received that raised seven issues. No public meeting was requested and none was held.

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C. History of Fund Regulations in 33
CFR Part 135 and Subpart D of 33 CFR
Part 153
The Coast Guard added part 135, titled Offshore Oil Pollution Compensation Fund, to 33 CFR in 1979
44 FR 16860, March 19, 1979 and it added subpart D, titled Administration of the Pollution Fund, to 33 CFR part 153 in 1971 36 FR 7009, April 13, 1971. This rule removes 33 CFR part 135 and subpart D of 33 CFR part 153, which concern management of two pollution funds for which OPA 90
repealed the authorities. The two defunct funds are the Offshore Oil Pollution Compensation Fund OSCLA
Fund in 33 CFR part 135 and the Federal Water Pollution Control Act FWPCA Section 311k Fund 311k Fund in subpart D of 33 CFR part 153.
On November 1, 2011, the Coast Guard published a notice of inquiry 76
FR 67385 soliciting public comment on whether to remove 33 CFR part 135.4
We received no adverse comments;
there were three comments supporting the removal of part 135. No comments were received during the 2020 NPRM
comment period addressing the removal of either 33 CFR part 135 or subpart D
of 33 CFR part 153. This rule removes those portions of the CFR.
III. Discussion of Comments and Changes The Coast Guard received six comment submissions raising seven issues during the 90-day public comment period for the proposed rule, which closed on August 11, 2020. The letters we received during the public comment period were from three COFR
guarantors, a regional citizen group, an insurance trade association and an insurance underwriter. The following discussion summarizes the public comments we received and our responses to the comments. In general, commenters were very supportive of the changes. Three regulatory changes from those we proposed were made based on the comments received.
Supportive comments. One commenter generally supports proposed changes that would assist vessel operators and the U.S. Coast Guard 4 The notice of inquiry was initially published as part of the Coast Guards Claims Procedures Under the Oil Pollution Act of 1990 rulemaking. However, this rulemaking was closer to completion, so the removal of 33 CFR part 135 has been included with this rulemaking.

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National Pollution Funds Center NPFC
in effectively managing the Certificate of Financial Responsibility Program.
Another commenter further supports reporting GT tonnage measurement systems and submitting the GT
certifying document upon request.
Terminology comments. Two commenters addressed terminology clarifications in section 138.30 of the proposed rule. While one commenter was supportive of terminology clarifications, the other commenter cited the term responsible party as an example of terminology that could lead to confusion if the definitions were not compatible with the relevant statutes.
The Coast Guard agrees with this commenter and as proposed, had modified some definitions to cross reference to the relevant statutes but notes that the definition of responsible party had non-substantive changes in the proposed rule to better align with OPA 90.
Improved technology comments. A
commenter supports our proposed revisions to the COFR regulations to incorporate improved management practices and technological advances in 138.60. The changes include several minor changes in 138.60 to make it easier for operators to file information electronically, by explicitly allowing scanned documents and email or faxed submissions. The rule also modifies past technical amendments to implement Electronic COFRs, which makes it easier to keep COFR information updated as vessel operations change. This will increase flexibility for operators and remove unnecessary administrative paperwork burdens to the public.
Directors discretion to grant a waiver comment. One commenter notes that proposed section 138.60e appears to restrict the discretion available to the Director in the granting of exceptions, and does not permit the granting of a waiver if an application is made where a vessel is set to arrive within 21 days from the application date. Accordingly, the commenter recommends that a variation of the original discretion language contained in the existing rule be retained for the proposed Section 138.150 prior notice requirements. We agree with the commenter that the discretionary language is too restrictive, and are removing the written request requirement for requesting an exception under 138.60e. The phrase only upon written request, submitted as provided in paragraph c and d of this section, in advance of the deadline and, has been removed from the regulatory text, as well as the sentence: the Director will not grant a deadline exception request that does not set forth the
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reasons for the request and that does not give NPFC sufficient time to consider and act on an Application or a request for COFR renewal before the COFR is required. The Director may now grant an exception for good cause shown.
Surety Bonds comment. One commenter expressed concern with removing the reference to surety bonds from section 138.110, stating that they disagree with the assertion that a surety is unnecessary because it has rarely been used to meet the financial responsibility requirement. We disagree with this commenter. While this final rule removes the surety bond as a specifically mentioned method for establishing and maintaining evidence of financial responsibility, surety bonds are still a viable option. They have not been eliminated as an acceptable method; they may still be permitted under the other guaranty methods for establishing evidence of financial responsibility provided that the COFR
Operator completes the requirements 138.110f and upon the Directors acceptance of that method. We did not make a change from the proposed rule based on this comment.
Reason for termination of guaranty comments. One commenter supports the inclusion of the reporting requirement of the reason for termination of a guaranty by a guarantor in 138.110a3i. Another commenter disagrees, stating that requiring guarantors to report information, such as reasons for canceling a guaranty would make them become an enforcement mechanism for the Coast Guard, and would require them to breach non-disclosure agreements with customers. We disagree with the latter commenter. The regulatory text in 138.110a3i requests the guarantor provide NPFC the reason for termination, if known. It is not intended to make the guarantor engage in any type of an enforcement mechanism on behalf of the Coast Guard. We did not make a change from the proposed rule based on this comment.
Evidence of financial responsibility comments. One commenter seeks clarification on the new provisions in section 138.110b2iin particular, they ask what evidence is actually required to establish ability to issue COFR guarantees and to what levels?
The regulation is not specific as to what evidence is required, nor should it be.
It offers a few items as examples that will influence the decision, but largely maintains NPFCs discretion. The purpose and focus of the regulation is to provide general guidelines, but also allow for flexibility, subject to the Directors discretion. The commenter
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