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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Rules and Regulations TABLE 1CROSSWALK OF EXISTING COFR REGULATIONS AND THOSE IN THIS FINAL RULEContinued Existing COFR regulations
138.140
138.150

Enforcement
Service of process

138.10 Scope and Purpose The scope of subpart A 138.10a2
includes the standards and procedures the Coast Guard uses to determine guarantor acceptability. In addition, the scope of subpart A 138.10a3
includes the reporting requirements for guarantors. These changes for submitting evidence of financial responsibility on behalf of the COFR
Operator reflect current practice.
138.20 Applicability As required by statute, 138.20a1
extends the applicability of the rule to include tank vessels greater than 100
gross tons but less than or equal to 300
gross tons, regardless of whether it is transshipping or lightering oil. This provision expands the population of vessels under 300 gross tons that are required to establish and maintain evidence of financial responsibility under 33 U.S.C. 2716. The existing regulation includes any tank vessel using the waters of the EEZ to transship or lighter oil destined for a place subject to the jurisdiction of the United States, but if a tank vessel is not engaged in transshipping or lightering, the existing regulation has an exception for those that are 300 gross tons or less.
In 138.20a2 through a4, we extend the applicability of the rule to include guarantors, responsible parties other than the COFR Operator, and agents of process. This action is in accordance with current practice.

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Final rule COFR regulations
138.30 Definitions We cross-referenced additional statutory and regulatory definitions, added new regulatory definitions, amended regulatory definitions, and removed definitions that were not used.
The following definitions reflect substantive changes from existing regulations:
Applicant and certificant: We replaced the confusing terms applicant and certificant with the term COFR Operator throughout the COFR regulations. This action promotes consistency with the COFR programs business practice that authorizes the COFR Operator designated in the Application to represent the responsible parties for purposes of compliance with the COFR program.
COFR Operator: We redefined COFR
Operator to clarify when we are
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138.170 Enforcement.
138.130 Designating agents for service of process.

referring to the operator who is liable in the event of an incident or a release. We also replaced the previous term Operator with the term responsible party. This rule defines the term responsible party, for purposes of OPA 90 and CERCLA evidence of responsibility, by cross-reference to the relevant statute, and includes all those persons who meet the definition. This replacement of the term operator with the terms responsible party and COFR Operator makes clear that the designation of a COFR Operator to act on behalf of the responsible parties for purposes of the COFR program does not limit or preclude other responsible parties from being operators within the meaning of OPA 90 or CERCLA. We also expressly clarify that, when there is more than one responsible party, the COFR Operator is the operator designated and authorized by all the vessels responsible parties to act on their behalf to comply with the COFR
program.
Fleet Certificate and Individual Certificate: A new definition for the term Fleet Certificate parallels the definition of Master Certificate, and a new definition for the term Individual Certificate, so that COFR regulations will include definitions for all three types of Certificates issued by the Director.
Financial guarantor: We revise the definition to make clear that a financial guarantor cannot also be a self-insurer of a vessel, but that it is possible for the self-insurer of one vessel to be the financial guarantor for a different vessel.
Owner: We remove the prior regulatory definition of owner. It did not accurately reflect current law, and it was not clear that a separate regulatory definition of owner is needed or helpful, as both OPA 90 and CERCLA
define the term owner and we now cross-reference those definitions.
Tank vessel: We removed the regulatory definition of tank vessel, cross-referencing the OPA 90 statutory definition in 138.30a, and moved the exceptions to applicability to 138.20d3.
Vessel: We removed the regulatory definition of vessel and crossreference in 138.30a the statutory definitions that appear in OPA 90 and CERCLA. This is because there are slight differences in the OPA 90 and CERCLA

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definitions, specifically in the reference to public vessels in OPA 90. Therefore, although other provisions of the existing COFR regulations resolve these differences, we believe the better way to resolve the wording differences is to cross-reference the statutory definitions.
This approach ensures that COFRregulation definitions will always be consistent with OPA 90 and CERCLA.
138.50 How To Apply Vessel Gross Tonnages The previous COFR regulations provided instructions to apply different gross tonnage measurements for three different purposes: 1 To determine whether a tonnage threshold applies; 2
to calculate a vessels OPA 90 and CERCLA applicable amounts of financial responsibility; and 3 to determine the vessels OPA 90 and COFR limits of liability. However, these provisions were complex, and had been difficult to apply, in part because they were developed and established prior to the full coming into force of the International Convention on Tonnage Measurement of Ships June 23, 1969
on July 18, 1994. Furthermore, the 2010
Coast Guard Authorization Act included amendments that updated, clarified, and eliminated inconsistencies in the tonnage measurement law. The Coast Guard implemented these amendments in the 2016 rule,5 which also incorporated changes to help provide a suitable framework for tonnage-based regulations, allowing the Coast Guard to specify tonnage thresholds more clearly.
This rule maintains the purposes of applying gross tonnage measurements explained in the COFR regulations.
This rule separates provisions for applying vessel gross tonnage in 138.50 and clarifies and simplifies the language while conforming with the 2016 amendments to the U.S. tonnage regulations. We added a table to illustrate use of gross tonnages assigned under the two overarching tonnage measurement systems provided for by U.S. law.6
5 Tonnage Regulations Amendments final rule 81 FR 18701, March 31, 2016.
6 These systems are under the Convention Measurement System, which expresses gross tonnage as GT ITC, and the Regulatory Measurement System, which expresses gross tonnage as GRT.

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