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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Rules and Regulations
a OPA 90 applicable amount. The applicable amount under OPA 90 is equal to the applicable limit of liability determined as provided in subpart B of this part.
b CERCLA applicable amount. The applicable amount under CERCLA is determined as follows:
1 For a vessel over 300 gross tons carrying a hazardous substance as cargo, and for any vessel covered under 138.110c3 or d2ii calculation of CERCLA applicable amounts for financial guarantors and self-insurers, the greater of $5,000,000 or $300 per gross ton.
2 For any other vessel over 300 gross tons, the greater of $500,000 or $300 per gross ton.
c Amended applicable amounts. If an applicable amount determined under paragraph a or b of this section is amended by statute or regulation, the COFR Operator must establish and maintain evidence of financial
responsibility in an amount equal to or greater than the amended total applicable amount, as provided in 138.240a.
d OPA 90 and CERCLA applicable amounts and limits of liability. The responsible parties are strictly, jointly and severally liable, for the costs and damages resulting from an incident or a release, but together they need only establish and maintain an amount of financial responsibility equal to the single limit of liability per incident or release. Only that portion of the evidence of financial responsibility under this subpart 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; and 2 CERCLA is required to be made available by a guarantor for the costs and damages related to a release where there is not also an incident. A
guarantor or a self-insurer for whom the
exceptions to a limitations of liability are not applicable, therefore, is not required to apply the entire amount of financial responsibility to an incident involving oil alone or a release involving a hazardous substance alone.
138.110 How to establish and maintain evidence of financial responsibility.

a General requirement; guaranty effective date and termination date. The COFR Operator of each vessel must submit, or cause to be submitted, to the Director, the evidence of financial responsibility required by 138.40a using one of the methods specified in this section.
1 If submitted on behalf of the COFR
Operator, the guarantor must provide evidence of financial responsibility to the Director.
2 The effective and termination dates are as follows:

TABLE 1 TO 138.110a2EFFECTIVE AND TERMINATION DATES
Type of certificate
Effective date
Termination date
Individual
Fleet

Guaranty form submission date
Guaranty form submission date or date COFR Operator becomes a Responsible Party for the vessel.
Guaranty form submission date or date COFR Operator becomes a Responsible Party for the vessel.

30 days after the date the Director and the COFR Operator receive written notice from the guarantor that the guarantor intends to cancel the guaranty for that vessel.

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3 Termination provisions:
i The guarantor must specify the reason for terminating the guaranty in the notice required by this paragraph, if known.
ii Termination of the guaranty as to any covered vessel will not affect the liability of the guarantor in connection with an incident or release commencing or occurring prior to the effective date of the guaranty termination.
4 If, at any time, the information contained in the evidence of financial responsibility submitted under this section changes, or there is a material change in a guarantor or self-insurers financial position, the guarantor or COFR Operator or self-insurer as applicable, must report the change to the Director, as provided in 138.150.
b Insurance guaranty method. The COFR Operator may establish and maintain evidence of financial responsibility using the insurance guaranty method by submitting an Insurance Guaranty Form to the Director.
1 Each form must be executed by no more than four COFR insurance guarantors accepted by the Director. A
lead underwriter is considered one of the COFR insurance guarantors.

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2 The process for establishing and maintaining the acceptability of a COFR
insurance guarantor is as follows:
i The COFR insurance guarantor must request an initial determination by the Director of the COFR insurance guarantors acceptability to serve as a COFR insurance guarantor under this subpart, at least 90 days before the date a COFR is required, by submitting information describing the COFR
insurance guarantors structure, business practices, history, and financial strength, and such other information as may be requested by the Director.
ii The Director reviews the continued acceptability of COFR
insurance guarantors annually. Each COFR insurance guarantor must submit updates to the initial request submitted under paragraph b2i of this section, annually, within 90 days after the close of the COFR insurance guarantors fiscal year, describing any material changes to the COFR insurance guarantors legal status, structure, business practices, history, and financial strength, since the previous years submission, and providing such other information as may be requested by the Director.

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c Financial guaranty method. The COFR Operator may establish and maintain evidence of financial responsibility using the financial guaranty method by submitting a Financial Guaranty Form to the Director.
1 Each form must be executed by no more than four financial guarantors accepted by the Director, at least one of which must be a parent or affiliate of the COFR Operator. See paragraph g of this section for additional requirements if more than one financial guarantor signs the form.
2 The process for establishing and maintaining the acceptability of a financial guarantor is as follows:
i The financial guarantor must comply with the self-insurance provisions in paragraph d of this section, and the periodic reporting requirements in paragraphs e1
through 4 of this section.
ii The financial guarantor must also demonstrate that it maintains net worth and working capital, each in amounts equal to or greater than A The aggregate total applicable amounts, calculated for each COFR
Operator vessel for which the financial guaranty is being provided, based on
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