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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Rules and Regulations
Section 138.110c clarifies the net worth and working capital requirements for financial guarantors to reflect current practice. Previously, the NPFC did not add the total applicable amount of each vessel owned by one operator; rather, it based evidence of financial responsibility on the operators vessel with the greatest total applicable amount. This rule requires net worth and working capital be based on the aggregate total applicable amounts.
Section 138.110f changes the submission date for requesting another guaranty method for establishing evidence of financial responsibility from 45 to 90 days prior to the date the COFR
is required. The NPFC needs this additional 45 days to review the financial documentation and communicate with the potential guarantor.
138.120 Fees Section 138.120 eliminates a previous requirement that the application fee must be paid before the Director will issue a COFR. This adds flexibility and convenience for COFR Operators, especially if they are underway and want to enter U.S. navigable waters or U.S. EEZ. It further explains that failure to pay fees in a timely manner may result in denial or revocation of COFR, debt collection, or other enforcement.
Finally, it amends the fee refund procedures in the case of overpayment.
The Director will refund overpayments, because the NPFC will not credit overpayments for the operators future use or for transfer to another operator anymore.

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138.130 Designating Agents for Service of Process Section 138.130d shortens the notification period for a COFR Operator or Guarantor to notify the Director of a new agent for service of process from 10
days to 5 days. This shortened period reflects efficiencies relating to electronic notifications in place of mailed notifications.
138.140 Application Withdrawals, COFR Denials and Revocations Section 138.140 is revised to reflect current business practice. It adds a provision noting that the COFR
Operator, or anyone authorized to act on their behalf, may withdraw an Application at any time before issuance of the COFR. It also includes the failure to designate and maintain a U.S. agent for service of process to the list of cases in which the Director may deny an Application or revoke a COFR. The section revision also clarifies that the Director may deny an Application or
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revoke a COFR after obtaining additional information, such as transfer to a new operator, vessel renaming, guaranty termination or cancellation, or disapproval of the guarantor, and it adds a duty to remedy violations where a COFR for a vessel expires. Finally, it adds a provision specifying that where a COFR is revoked because 30 days have elapsed following the date the Director receives a guarantors notice of termination, the Director may reinstate the COFR if the guarantor promptly notifies the Director that the guarantor rescinded the termination and there was no gap in coverage. This will align the regulation to the COFR guaranty forms.
138.150 Reporting Requirements The rule merges reporting requirements into this one section. It also revises the regulatory text to emphasize prior notices of changes that will require a new COFR before the change occurs. Section 138.150
identifies the information that must be reported to the Director no later than 21
business days before a new COFR is required for permanent vessel transfers and other changes requiring issuance of a new COFR, and information that need only be reported 3 business days before implementing the change for changes not requiring issuance of a new COFR.
Changes that require issuance of a new COFR include, but are not limited to: A
permanent vessel transfer, change of COFR Operator, vessel name change, change in the vessels gross tonnage, or termination of guaranty. As a result of comments, 138.150d was revised to require that each guarantor or, if there are multiple guarantors, each lead guarantor must give the Director 30
days notice before terminating a guaranty as provided in 138.110a3, explaining the reason for the intended termination, once known, or should have known, in the ordinary course of business. The further requirement to give the Director notice before any other change occurs that will require new evidence of financial responsibility or issuance of a new COFR under paragraph b has been eliminated.
C. Removal of 33 CFR 138.90f Existing paragraph 138.90f contains a non-regulatory provision dealing with the temporary transfer of custody of an unmanned barge that has a COFR issued under subpart A of part 138. The COFR Operator who transfers the barge continues to be liable under OPA 90, CERCLA, or both, and continues to maintain on file with the Director acceptable evidence of financial responsibility with respect to the barge. The provision encourages the
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temporary transferee to require the transferring COFR Operator to acknowledge in writing that the transferring COFR Operator agrees to remain responsible for pollution liabilities. Since we received no adverse comments, we have removed 138.90f because the existing COFR remains in effect in respect to that vessel, and a temporary new COFR is not required.
D. Removal of 33 CFR Part 135 and Subpart D of 33 CFR Part 153
This document removes 33 CFR part 135 and subpart D of 33 CFR part 153
because OPA 90 repealed the legal authorities for them. These rules are outdated and are removed.
V. Regulatory Analyses We developed this rule after considering numerous statutes and Executive orders related to rulemaking.
Below we summarize our analyses based on these statutes or Executive orders.
A. Regulatory Planning and Review Executive Orders 12866 Regulatory Planning and Review and 13563
Improving Regulation and Regulatory Review direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits including potential economic, environmental, public health and safety effects, distributive impacts, and equity. Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Office of Management and Budget OMB has not designated this rule a significant regulatory action under section 3f of Executive Order 12866. Accordingly, OMB has not reviewed it. A regulatory analysis RA follows.
As explained in this section, this rule imposes some quantified costs, and create qualitative benefits, which the Coast Guard believes justifies the costs.
1. Analysis of Alternatives Alternative 1: No action.
The No Action alternative makes no regulatory changes to the evidence of financial responsibility regulations in 33
CFR part 138, subpart A. The No Action alternative is not viable because the statute requires evidence of financial responsibility regulations for tank vessels greater than 100 gross tons but less than or equal to 300 gross tons. At a minimum, a regulation implementing this requirement is required. This alternative reflects the status quo and
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