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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Rules and Regulations
g Additional rules regarding multiple guarantors. If more than one guarantor executes the relevant guaranty form, the following rules apply:
1 If a guarantors percentage of vertical participation is specified on the relevant guaranty form, the guarantor is subject to direct action and is liable for the payment of costs and damages under OPA 90 or CERCLA, as applicable, only in accordance with the percentage of vertical participation so specified for that guarantor.
2 Participation in the form of layering tiers, one in excess of another is not permitted. Only vertical participation on a percentage basis and participation with no specified percentage allocation is acceptable.
3 If no percentage of vertical participation is specified for a guarantor on the relevant guaranty form, the guarantors liability is joint and several for the total of the unspecified portion.
4 The participating guarantors must designate a lead guarantor having authority to bind all of the participating guarantors for actions required of guarantors under OPA 90 or CERCLA
and this subpart, including but not limited to reporting changes in the evidence of financial responsibility as provided in 138.150d, receipt of source designations, advertisement of source designations and the responsible partys claims procedures, and receipt and settlement of claims.
h Direct action. 1 Each guarantor providing evidence of financial responsibility must submit to the Director a written acknowledgment by the guarantor that a claimant including a claimant by right of subrogation may assert any claim for costs or damages arising under OPA 90, CERCLA, or both, directly against the guarantor, regardless of whether the claim is asserted in an action in court or other proceeding. The guarantor must also acknowledge that, in the event a claim is asserted directly against the guarantor under OPA 90, CERCLA, or both, the guarantor may invoke only the following rights and defenses i The incident, release, or both, were caused by the willful misconduct of a responsible party for whom the guaranty was provided;
ii All rights and defenses, which would be available to the responsible party under OPA 90, CERCLA, or both, as applicable;
iii A defense that the amount of the claim, or all claims asserted with respect to the same incident or release, whether asserted in court or in any other proceeding, exceeds the amount of the guaranty, except when the guaranty is based on the gross tonnage of the
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vessel instead of the statutory minimums and the guarantor knew or should have known that the applicable tonnage certificate was incorrect see 138.50f; and iv The claim is not one made under OPA 90, CERCLA, or both.
2 Except when the guaranty is based on the gross tonnage of the vessel instead of the statutory minimums and the guarantor knew or should have known that the evidence of financial responsibility or applicable tonnage certificate is incorrect see 138.50f, a guarantor who provides evidence of financial responsibility under this subpart will be liable, with respect to any one incident or release, or both, as applicable, only for the amount of costs and damages specified in the evidence of financial responsibility.
3 A guarantor will not be considered to have consented to direct action under any law other than OPA 90 or CERCLA, or to unlimited liability under any law or in any venue, solely because the guarantor has provided evidence of financial responsibility under this subpart.
4 In the event of any finding that the liability of a guarantor under OPA 90 or CERCLA exceeds the amount of the guaranty provided under this subpart, that guaranty is considered null and void with respect to that excess.
i Process upon disapproval of guarantor. If the Director intends to disapprove or revoke the approval of a guarantor for example, due to the guarantors change in financial position, the Director will notify the COFR Operator of the need to establish new evidence of financial responsibility within a specified period.
1 If the COFR Operator establishes, or causes to be established, new acceptable evidence of financial responsibility within the period specified by the Director in the notice, the Application if otherwise complete will be approved or the COFR will remain in effect, and the COFR Operator will not have to pay a new Application fee or certification fee.
2 If the COFR Operator fails to establish, or cause to be established, new acceptable evidence of financial responsibility within the period specified by the Director in the notice, the Director may deny or revoke the COFR and, if revoked, the COFR
Operator will have to apply for a new COFR and pay a new certification fee.
The COFR Operators failure to establish, or cause to be established, new acceptable evidence of financial responsibility within the period specified by the Director may also result
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in enforcement as provided under 138.170.
138.120

Fees.

a Fee payment methods. Each COFR
Operator applying for a COFR, or requesting a COFR renewal, must pay the fees required by paragraphs b and c of this section as follows:
1 All fees required by this section must be paid in United States dollars.
2 For COFR Operators using eCOFR
as provided under 138.60c1i, credit card payment is required.
3 For COFR Operators submitting Applications and requests for COFR
renewal under 138.60c1ii through iv email, fax, and mail submissions, the fees must be paid by a check, cashiers check, draft, or postal money order, made payable to the U.S. Coast Guard. Cash payments will not be accepted.
i For Applications and requests for COFR renewal submitted under 138.60c1ii and iii email and fax submissions, respectively, all fee payments must be received by the Director no later than 21 days following submission of the Application or request for COFR renewal.
ii For Applications and requests for COFR renewal submitted under 138.60c1iv mail submissions, all fee payments must be enclosed with the Application or request for COFR
renewal.
4 Any failure to timely pay the fees required by this section may result in COFR denial or revocation, debt collection see 6 CFR part 11, 44 CFR
part 11, and 31 CFR parts 285, and 900
through 904, and such other enforcement under 138.170 as may be appropriate.
b Application fee. 1 Except as provided in paragraph b2 of this section, the COFR Operator must pay a non-refundable Application fee of $200
for each Application submitted under this subpart for each Application for one or more Individual Certificates, for a Fleet Certificate, or for a Master Certificate.
2 An Application fee is not required when the COFR Operator submits i A request for an additional Individual Certificate under an existing Application;
ii A request to amend an Application;
iii A request for Certificate renewal;
or iv A request to reinstate a Certificate, if submitted within 90 days following the Certificates revocation.
c Certification fees. In addition to the Application fees required by paragraph b of this section, each COFR

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