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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Rules and Regulations
column, select Supporting & Related Material.
FOR FURTHER INFORMATION CONTACT: For information about this document call or email Benjamin H. White, National Pollution Funds Center, Coast Guard;
telephone 2027956066, email Benjamin.H.White@uscg.mil.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble I. Abbreviations II. Basis and Purpose, and Regulatory History III. Discussion of Comments and Changes IV. Discussion of the Rule V. Regulatory Analyses A. Regulatory Planning and Review B. Small Entities C. Assistance for Small Entities D. Collection of Information E. Federalism F. Unfunded Mandates G. Taking of Private Property H. Civil Justice Reform I. Protection of Children J. Indian Tribal Governments K. Energy Effects L. Technical Standards M. Environment
I. Abbreviations
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311k Fund The fund established by Section 311k of the Federal Water Pollution Control Act CERCLA Comprehensive Environmental Response, Compensation, and Liability Act of 1980
COFR Certificate of Financial Responsibility CFR Code of Federal Regulations CIMS Case Information Management System DHS Department of Homeland Security eCOFR Electronic Certificate of Financial Responsibility EEZ Exclusive Economic Zone FWPCA Federal Water Pollution Control Act GT Gross Tonnage IRFA Initial Regulatory Flexibility Analysis MISLE Marine Information for Safety and Law Enforcement NPFC National Pollution Funds Center NPRM Notice of proposed rulemaking OCSLA Fund Offshore Oil Pollution Compensation Fund OMB Office of Management and Budget OPA 90 Oil Pollution Act of 1990
OSLTF Oil Spill Liability Trust Fund RA Regulatory Analysis SBA Small Business Administration U.S. United States U.S.C. United States Code Section
II. Basis and Purpose, and Regulatory History Responsible parties for certain vessels must establish and maintain evidence of financial responsibility, under both the Oil Pollution Act of 1990 OPA 90, as amended, specifically, 33 U.S.C. 2716
and the Comprehensive Environmental
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Response, Compensation, and Liability Act of 1980 CERCLA specifically, 42
U.S.C. 9608. The evidence of financial responsibility must meet the maximum amount of liability under 33 U.S.C.
2704a or d. Violators of those requirements are subject to various penalties under 33 U.S.C. 2716a and 42
U.S.C. 9609.
The 2010 Coast Guard Authorization Act Pub. L. 111281, 124 Stat. 2988
October 15, 2010 expands OPA 90 by adding any tank vessel greater than 100
gross tons but less than or equal to 300
gross tons using any place subject to U.S. jurisdiction to the population of vessels subject to the evidence of financial responsibility requirements.
The Coast Guard is amending the Code of Federal Regulations CFR to reflect that statutory change.
The Coast Guard had previously issued Certificate of Financial Responsibility COFR regulations at 33
CFR part 138, subpart A, which apply to vessels over 300 gross tons, as well as certain other vessels depending on how and where they are operated. The Coast Guard has modernized and simplified its COFR program since those regulations were established. Certain aspects of the COFR program are improved, particularly in the COFR
requirements for reporting changes in vessel operation, ownership, or evidence of financial responsibility that affected the basis of the Coast Guards decision to issue a COFR. Finally, the structure of the COFR regulations and some of their provisions, including the rules for applying vessel gross tonnage, have been modernized to reflect changes in the law and Coast Guard practice, since OPA 90s initial legislation.1
These changes increase flexibility for operators and remove unnecessary administrative paperwork burdens to the public and to National Pollution Funds Center NPFC.
A. Purpose of COFR Regulations Under OPA 90, each responsible party owners, operators, and demise charters for a vessel from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone EEZ, is jointly and severally liable for the specified removal costs and damages up to prescribed limits of liability.2 Similar requirements 1 This final rule conforms the COFR regulatory text to the Coast Guards Tonnage Regulations Amendments final rule 81 FR 18701, March 31, 2016, which amended the U.S. tonnage regulations in 46 CFR part 69.
2 OPA 90 defines liable and liability as the standard of liability which obtains under section
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pertaining to hazardous substances apply to owners and operators of vessels and facilities under 42 U.S.C. 9607 of CERCLA.
Under OPA 90 and CERCLA, the responsible parties for certain categories of vessels must establish and maintain evidence of financial responsibility in accordance with regulations promulgated by the Secretary. The purpose of this requirement is to ensure that, in advance of an oil pollution incident or a hazardous substance release, the responsible parties for the vessels in the specified categories have the financial ability to meet their potential liabilities under OPA 90 and CERCLA up to the applicable limits of liability.
Under 33 U.S.C. 2716 evidence of financial responsibility is required for the following categories:
1 Vessels greater than 300 gross tons except a non-self-propelled vessel that does not carry oil as cargo or fuel using any place subject to the jurisdiction of the United States.
2 Vessels using the waters of the EEZ to transship or lighter oil destined for a place subject to the jurisdiction of the United States U.S..
3 Tank vessels greater than 100 gross tons using any place subject to the jurisdiction of the United States.
B. History of COFR Regulations Initially, the Coast Guard established COFR regulations in 33 CFR part 138
with an interim rule published July 1, 1994 59 FR 34210 followed by a final rule published March 7, 1996 61 FR
9264. In 2008 the Coast Guard amended the COFR regulations and placed them in a newly created subpart A of part 138
73 FR 53691, September 17, 2008.3 In addition to making several other changes, that final rule removed a requirement that responsible parties carry an original or authorized copy of the current COFR aboard each covered vessel, because improved technology enabled the Coast Guard to view vessel COFRs electronically.
This 2021 rule follows our consideration of comments on a Notice of Proposed Rulemaking NPRM
published on May 13, 2020 85 FR
1321 of this title Section 311 of the FWCPA. 33
U.S.C. 270117. Liability under Section 311, in turn, has been determined repeatedly to be strict, joint and several. H.R.Rep. No. 101653, at 780
1990, reprinted in 1990 U.S.C.C.A.N. 779, 780, 1990 WL132747.
3 That rule expanded part 138s heading to Financial Responsibility for Water Pollution Vessels and OPA 90 Limits of Liability Vessels and Deepwater Ports and dedicated subpart B to the last half of the revised headinglimits of liability for vessels and deepwater ports under OPA
90.

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