Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations 53691 

(3) News media requesters. The FOIA 

Officer shall charge news media 

requesters for document duplication 

costs only, except that the first 100 

pages of paper copies shall be provided 

without charge. 

(4) All other requesters. The FOIA 

Officer shall charge requesters who do 

not fall into any of the categories in 

paragraphs (d)(1) through (3) of this 

section fees which recover the full 

reasonable direct costs incurred for 

searching for and reproducing records if 

that total cost exceeds $14.99, except 

that the first 100 pages of duplication 

and the first two hours of manual search 

time shall not be charged. 

(e) Charges for unsuccessful searches. 

If the requester has been notified of the 

estimated cost of the search time and 

has been advised specifically that the 

requested records may not exist or may 

be withheld as exempt, fees may be 

charged. 

(f) Nonpayment of fees. The FOIA 

Officer may assess interest charges on 

an unpaid bill, accrued under previous 

FOIA request(s), starting the thirty-first 

(31st) day following the day on which 

the bill was sent to the requester. 

Interest will be at the rate prescribed in 

31 U.S.C. 3717. MCC will require the 

requester to pay the full amount owed 

plus any applicable interest as provided 

above, and to make an advance payment 

of the full amount of the remaining 

estimated fee before MCC will begin to 

process a new request or continue 

processing a then-pending request from 

the requester. The administrative 

response time limits prescribed in 

subsection (a)(6) of the FOIA will begin 

only after MCC has received fee 

payments described in this section. 

(g) Aggregating requests. The 

requester or a group of requesters may 

not submit multiple requests at the same 

time, each seeking portions of a 

document or documents solely in order 

to avoid payment of fees. When the 

FOIA Officer reasonably believes that a 

requester is attempting to divide a 

request into a series of requests to evade 

an assessment of fees, the FOIA Officer 

may aggregate such request and charge 

accordingly. 

(h) Advance payment of fees. Fees 

may be paid upon provision of the 

requested records, except that payment 

will be required prior to that time if the 

requester has previously failed to pay 

fees or if the FOIA Officer determines 

the total fee will exceed $250.00. When 

payment is required in advance of the 

processing of a request, the time limits 

prescribed in § 1304.5 shall not be 

deemed to begin until the FOIA Officer 

has received payment of the assessed 

fee. Where it is anticipated that the cost 

of providing the requested record will 

exceed $25.00 but fall below $250.00 

after the free duplication and search 

time has been calculated, MCC may, in 

its discretion may require either: 

(1) An advance deposit of the entire 

estimated charges; or 

(2) Written confirmation of the 

requester’s willingness to pay such 

charges. 

Dated: September 5, 2008. 

John C. Mantini, 

Chief FOIA Officer, Millennium Challenge 

Corporation. 

[FR Doc. E8–21335 Filed 9–16–08; 8:45 am] 

BILLING CODE 9211–03–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 138 

[Docket No. USCG–2005–21780] 

RIN 1625–AA98 

Financial Responsibility for Water 

Pollution (Vessels) and OPA 90 Limits 

of Liability (Vessels and Deepwater 

Ports) 

AGENCY: Coast Guard, DHS. 

ACTION: Final rule. 

SUMMARY: The Coast Guard is amending 

the regulatory requirements, under the 

Oil Pollution Act of 1990 and the 

Comprehensive Environmental 

Response, Compensation and Liability 

Act, for vessel operators (as defined in 

the rule) to establish and maintain 

evidence of financial responsibility. The 

amendments ensure that the amounts of 

financial responsibility that must be 

demonstrated by vessel operators are 

consistent with recent statutory 

increases, and future mandated 

increases, to the limits of liability under 

the Oil Pollution Act of 1990. The 

amendments also implement changes in 

the Coast Guard’s administration of the 

certificate of financial responsibility 

program, and clarify the current rule. 

DATES: This final rule is effective 

October 17, 2008. 

ADDRESSES: Comments and material 

received from the public, as well as 

documents mentioned in this preamble 

as being available in the docket, are part 

of docket USCG–2005–21780 and are 

available for inspection or copying at 

the Docket Management Facility (M–30), 

U.S. Department of Transportation, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. You may also 

find this docket on the Internet at 

http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call 

Benjamin White, National Pollution 

Funds Center, Coast Guard, telephone 

202–493–6863. If you have questions on 

viewing the docket, call Renee V. 

Wright, Program Manager, Docket 

Operations, telephone 202–366–9826. 

SUPPLEMENTARY INFORMATION: 

I. Acronyms 

CERCLA Title I of the Comprehensive 

Environmental Response, Compensation, and 

Liability Act of 1980, as amended (42 U.S.C. 

9601–9675). 

CFR Code of Federal Regulations. 

COFR Certificate of Financial 

Responsibility. 

DPA Deepwater Port Act of 1974, as 

amended (33 U.S.C. 1501 et seq.). 

DRPA Delaware River Protection Act of 

2006, Title VI of the Coast Guard and 

Maritime Transportation Act of 2006, Public 

Law 109–241, July 11, 2006, 120 Stat. 516. 

FRFA Final Regulatory Flexibility 

Analysis. 

FR Federal Register. 

Fund Oil Spill Liability Trust Fund. 

IRFA Initial Regulatory Flexibility 

Analysis. 

LOOP Louisiana Offshore Oil Port. 

MODU Mobile Offshore Drilling Unit. 

NEPA National Environmental Policy Act 

of 1969 (42 U.S.C. 4321–4370f). 

NPRM Notice of Proposed Rulemaking. 

OPA 90 The Oil Pollution Act of 1990, as 

amended (33 U.S.C. 2701, et seq.). 

U.S.C. United States Code. 

U.S.C.C.A.N. United States Code 

Congressional and Administrative News. 

II. Regulatory History 

On August 18, 2006, before initiating 

this rulemaking, we published a notice 

of policy in the Federal Register (71 FR 

47737) entitled ‘‘New Oil Pollution 

Limits of Liability for Vessels— 

Delaware River Protection Act of 2006 

Amendment to the Oil Pollution Act of 

1990’’ (hereafter the ‘‘Notice of Policy’’). 

On February, 5, 2008, we published a 

notice of proposed rulemaking (NPRM) 

in the Federal Register (73 FR 6642), 

entitled ‘‘Financial Responsibility for 

Water Pollution (Vessels) and OPA 90 

Limits of Liability (Vessels and 

Deepwater Ports)’’. 

On February 13, 2008, we published 

corrections to the NPRM in the Federal 

Register (73 FR 8250), to clarify the 

proposed effective date of the rule and 

the distinction between the financial 

responsibility applicable amounts of 

§ 138.80(f) and the OPA 90 limits of 

liability in proposed Subpart B. 

We received seven letters during the 

public comment period raising 13 

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53692 Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations 

1See, Oil Pollution Desk Book, Environmental 

Law Institute 1991, hereinafter OPA 90 Desk Book, 

p. 88, H.R. Conf. Report 101–653, at p. 102, 

reprinted in 1990 U.S.C.C.A.N. 779, 780 [’’The term 

‘liable’ or ‘liability’ * * * is to be construed to be 

the standard of liability * * * under section 311 of 

the [Federal Water Pollution Control Act, 33 U.S.C. 

1321] * * *. That standard of liability has been 

determined repeatedly to be strict, joint and several 

liability.’’]; OPA 90 Desk Book p. 93, H.R. Conf. 

Report 101–653, at 118, 1990 U.S.C.C.A.N., at 797 

(Aug. 3, 1990) [‘‘[T]he primary responsibility to 

compensate victims of oil pollution rests with the 

person responsible for the source of the 

pollution[.]’’]. 

issues, and one additional letter after 

the public comment period closed on 

May 5, 2008, raising one issue. No 

public meeting was requested and none 

was held. 

III. Background and Purpose 

In general, under the Oil Pollution 

Act of 1990, as amended (33 U.S.C. 

2701, et seq.) (OPA 90), responsible 

parties (i.e., the owners and operators, 

including demise charterers) for a vessel 

or a facility 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 are liable for the removal 

costs and damages specified in OPA 90 

that result from such incident, up to 

prescribed limits of liability. (33 U.S.C. 

2702(a); 33 U.S.C. 2704). Embodying the 

polluter pays principle, this liability is 

strict, joint and several.1 Similar 

requirements apply under Section 107 

of the Comprehensive Environmental 

Response, Compensation and Liability 

Act of 1980, as amended (42 U.S.C. 

9607) (CERCLA) to owners and 

operators of vessels and facilities that 

release or threaten to release hazardous 

substances. 

The OPA 90 limits of liability are set 

out in 33 U.S.C. 2704(a). The CERCLA 

limits of liability are set out in 42 U.S.C. 

9607. 

In addition to the limit of liability 

provisions, 33 U.S.C. 2716(a) of OPA 90 

and 42 U.S.C. 9608(a) of CERCLA 

require that the owners and operators, 

including demise charterers, of certain 

vessels establish and maintain evidence 

of financial responsibility (i.e., ability to 

pay) sufficient to meet the maximum 

amount of liability to which they could 

be subjected under 33 U.S.C. 2704 and 

42 U.S.C. 9607. 

According to 33 U.S.C. 2716(a)(1) and 

(2), the evidence of financial 

responsibility requirements apply, in 

relevant part for purposes of OPA 90, to 

responsible parties for: Any vessel over 

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; 

and any vessel using the waters of the 

exclusive economic zone to transship or 

lighter oil destined for a place subject to 

the jurisdiction of the United States. 

OPA 90, at 33 U.S.C. 2716(c), also 

imposes evidence of financial 

responsibility requirements on offshore 

facilities and deepwater ports. This 

rulemaking, however, only concerns the 

OPA 90 evidence of financial 

responsibility requirements that must be 

met by vessels under 33 U.S.C. 2716(a). 

The OPA 90 limits of liability are 

subject to amendment both by statute 

and, under 33 U.S.C. 2704(d), by 

regulation, and when the limits of 

liability are amended the financial 

responsibility requirements must be 

adjusted by regulation. On July 11, 

2006, the President signed the Delaware 

River Protection Act of 2006, Title VI of 

the Coast Guard and Maritime 

Transportation Act of 2006, Public Law 

109–241, July 11, 2006, 120 Stat. 516 

(DRPA). Section 603(a) of DRPA 

amended the OPA 90 limits of liability 

for vessels at 33 U.S.C. 2704(a). 

The following table shows the OPA 90 

limits of liability in effect before DRPA, 

and the new limits of liability under 

OPA 90 as amended by DRPA Section 

603(a), by vessel type: 

CHANGES TO OPA 90 VESSEL LIMITS OF LIABILITY 2

If the vessel is a The original limit of liability limit was the 

greater of— 

The amended limit of liability is the 

greater of— 

Tank vessel greater than 3,000 gross tons with 

a single hull, with double sides only, or with a 

double bottom only.

$1,200 per gross ton or $10,000,000 .............. $3,000 per gross ton or $22,000,000. 

Tank vessel less than or equal to 3,000 gross 

tons with a single hull, with double sides 

only, or with a double bottom only.

$1,200 per gross ton or $2,000,000 ................ $3,000 per gross ton or $6,000,000. 

Tank vessel greater than 3,000 gross tons with 

a double hull.

$1,200 per gross ton or $10,000,000 .............. $1,900 per gross ton or $16,000,000. 

Tank vessel less than or equal to 3,000 gross 

tons with a double hull.

$1,200 per gross ton or $2,000,000 ................ $1,900 per gross ton or $4,000,000. 

Any vessel other than a tank vessel .................. $600 per gross ton or $500,000 ...................... $950 per gross ton or $800,000. 

2Sources: 33 U.S.C. 2704(a) immediately prior to amendment by DRPA, and 33 U.S.C. 2704(a) as amended by DRPA Section 603(a). Although the original and current versions of 33 U.S.C. 2704(a) both distinguish between vessels on the basis of their gross tonnage and whether 

they are tank vessels, 33 U.S.C. 2704(a) as amended by DRPA Section 603(a) now also distinguishes between single-hulled and double-hulled 

tank vessels. 

On August 18, 2006, before initiating 

this rulemaking, we published a Notice 

of Policy in the Federal Register (71 FR 

47737, see, Regulatory History) 

explaining: 

• That the OPA 90 limits of liability 

for vessels were changed by DRPA 

effective July 11, 2006 for non-tank 

vessels, and effective October 9, 2006 

for tank vessels; 

• The amounts of the new OPA 90 

vessel limits of liability; 

• That the OPA 90 proof of financial 

responsibility (applicable amount) 

requirements for vessels at 33 CFR part 

138 would stay at the applicable amount 

levels in effect prior to the DRPA 

amendments until changed by 

rulemaking; and 

• That a rulemaking project would be 

initiated to require vessel owners and 

operators to provide evidence of 

financial responsibility applicable 

amounts under 33 CFR part 138 to the 

amended OPA 90 limits of liability. 

Scope of the Rule 

This rulemaking was initiated, as 

contemplated in the Notice of Policy, to 

ensure that the owners and operators 

(including demise charterers, hereafter 

referred to jointly as the operators) of 

any vessel required to have a certificate 

of financial responsibility under 33 

U.S.C. 2716, demonstrate that they are 

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Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations 53693 

3This rulemaking does not change the limits of 

liability or applicable amount provisions for vessels 

under CERCLA at 42 U.S.C. 9607(c), 42 U.S.C. 

9608(a), and § 138.80(f)(2). 

financially able to meet their potential 

liability under OPA 90, 33 U.S.C. 2704, 

under the new limits of liability as 

amended by DRPA, in the event of an 

incident where an OPA 90 limit of 

liability applies. The rulemaking 

amends 33 CFR part 138 to ensure 

consistency between the OPA 90 vessel 

evidence of financial responsibility 

applicable amounts at § 138.80(f)(1) and 

the OPA 90 vessel limits of liability as 

amended by DRPA.3

This rulemaking also establishes the 

framework for ensuring consistency 

when regulatory changes to the OPA 90 

limits of liability for vessels and 

deepwater ports are promulgated in the 

future under 33 U.S.C. 2704(d). 

Specifically, the rulemaking divides 

part 138 of Title 33 CFR into two 

subparts. The vessel financial 

responsibility requirements, former 33 

CFR part 138, as amended by this 

rulemaking now appears under 33 CFR 

part 138, new subpart A. In addition, a 

new subpart has been created, at 33 CFR 

part 138, subpart B, to set forth the OPA 

90 limits of liability for vessels and 

deepwater ports, and reserving 

paragraphs for other oil spill source 

categories that are regulated by the 

Coast Guard. Last, rather than 

specifically enumerating the OPA 90 

financial responsibility applicable 

amounts for vessels in § 138.80(f)(1), 

that section now cross-references to the 

OPA 90 limits of liability for vessels as 

amended by DRPA or hereafter by 

regulation, as set forth in new subpart 

B. This change ensures that the OPA 90 

financial responsibility applicable 

amounts that must be proven by vessel 

operators, under 33 CFR part 138, 

subpart A, will always be consistent 

with the OPA 90 limits of liability set 

forth in 33 CFR part 138, subpart B. 

This rulemaking also eliminates the 

requirement in former § 138.65 that an 

original Certificate of Financial 

Responsibility (Certificate or COFR), or 

an authorized copy thereof, be carried 

aboard covered vessels. Improved 

technology now enables the Coast Guard 

to view vessel COFRs electronically, 

which is more cost effective than 

tasking inspectors to view a paper 

Certificate on board each vessel. 

In addition, the rule increases the 

COFR application and certification fees 

found in § 138.130. The prior fee 

amounts were established in 1994 in the 

interim rule entitled ‘‘Financial 

Responsibility for Water Pollution 

(Vessels)’’ (59 FR 34210), and the 

amounts had not been increased since 

that time. The new fee amounts 

established by this rulemaking 

approximate the fluctuations to the 

Consumer Price Index occurring as a 

result of inflation since 1994. 

Finally, this rulemaking revises the 

definition of ‘‘owner’’ in § 138.20 to 

reflect amendments to OPA 90 by the 

Coast Guard and Maritime 

Transportation Act of 2004, Public Law 

108–293, August 9, 2004, 118 Stat. 1045. 

IV. Discussion of Comments and 

Changes 

We received seven letters raising 13 

issues during the public comment 

period for the proposed rule (73 FR 

6642 and 73 FR 8250), and one 

additional letter raising one issue after 

the public comment period closed on 

May 5, 2008. The letters we received 

during the public comment period were 

from a private citizen, three COFR 

guarantors, a proposed liquid natural 

gas (LNG) deepwater port developer, a 

State environmental agency, and an 

association of oil spill regulatory 

agencies from Alaska, British Columbia, 

Washington, Oregon, Hawaii and 

California. The letter received after the 

public comment period closed was from 

an offshore drilling association. The 

following discussion summarizes the 

public comments we received and our 

responses to the comments. 

One commenter was concerned with 

an oil spill off the coast of New Jersey 

more than one year ago where the 

responsible party was never identified, 

and proposed that, to improve security 

and prevent pollution, the U.S. have 

information on every ship carrying any 

cargo that enters any U.S. waters at any 

time. This rulemaking only addresses 

the requirements under 33 U.S.C. 2716 

for vessels to provide evidence of 

financial responsibility. The comment is 

therefore beyond the scope of this 

rulemaking, and no change has been 

made in the final rule in response to this 

comment. The Coast Guard, however, 

agrees that maritime domain awareness 

is important to our national security and 

efforts to reduce pollution, and is taking 

steps to improve vessel tracking 

systems. 

The same commenter proposed that 

the Coast Guard establish a requirement 

for vessels to post a five million dollar 

bond to pay for any damage in the event 

of an oil spill incident. This comment 

is beyond the scope of this rulemaking. 

OPA 90 does not authorize the Coast 

Guard to impose a bonding requirement 

on vessels including cargo vessels. 

Therefore, no change has been made to 

the final rule in response to this 

comment. OPA 90 does, however, 

establish limits of liability at 33 U.S.C. 

2704(a), applicable to all vessels. Those 

limits are generally more than five 

million dollars for tank vessels, and for 

most large ocean-going vessels. 

Furthermore, at 33 U.S.C. 2716 and in 

these regulations, OPA 90 requires that 

all vessels—including cargo vessels— 

over 300 gross tons establish and 

maintain evidence of financial 

responsibility sufficient to meet the 

maximum amount of liability to which 

the responsible party could be subjected 

under 33 U.S.C. 2704(a). 

Two commenters recommended 

adding the following proviso at the end 

of the first sentence of § 138.80(d)(2) 

Limitation on guarantor liability: ‘‘, 

provided that the guarantor was 

immediately notified as required by 33 

U.S.C. 2714 and given the same 

opportunity to respond to an incident or 

a release or threatened release, as that 

given to the responsible party.’’ This 

comment is beyond the scope of this 

rulemaking. This rulemaking only 

addresses the requirements under 33 

U.S.C. 2716 for vessels to provide 

evidence of financial responsibility. The 

provisions of OPA 90 concerning 

designation of sources, and notification 

of responsible parties and guarantors, 

are set forth in 33 U.S.C. 2714(a), and 

are detailed further in regulations at 33 

CFR part 136, subpart D (33 CFR 

136.305(a)). 

Furthermore, there is no provision in 

33 U.S.C. 2714(a) or elsewhere in OPA 

90 that limits a guarantor’s liability for 

removal costs and damages in the event 

the government does not notify the 

responsible party or guarantor of a 

source designation. A failure to notify 

only affects the responsible party’s and 

guarantor’s obligations concerning 

advertisement to potential claimants, 

under 33 U.S.C. 2714(b) and 

implementing regulations at 33 CFR part 

136. The Coast Guard therefore 

disagrees with the proposed change to 

§ 138.80(d). 

One commenter recommended 

changing the reference to the Louisiana 

Offshore Oil Port (LOOP) in 

§ 138.220(b), to encompass any limit of 

liability established under 33 U.S.C. 

2704(d)(2)(A)–(C). We agree that the 

wording in the proposed regulatory text 

was unnecessarily narrow and have 

amended § 138.220(b) accordingly. 

One commenter asked that 

§ 130.220(b) be expanded to describe the 

nature of any studies that might be 

required of deepwater port license 

applicants or license holders and the 

specific administrative process to be 

followed under 33 U.S.C. 2704(d)(2) for 

seeking adjustments to the limits of 

liability for deepwater ports under 33 

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53694 Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations 

U.S.C. 2704(a). This comment concerns 

issues that go beyond the scope of this 

rulemaking. This rulemaking identifies 

the existing limits of liability for vessels 

and deepwater ports, but it does not 

adjust any limits of liability. Nor does 

it concern the studies and other criteria 

under 33 U.S.C. 2704(d) for adjusting 

the limits. Instead, it primarily concerns 

the evidence of financial responsibility 

requirements applicable to vessels 

under 33 U.S.C. 2716. 

One commenter asked several 

questions concerning how the Coast 

Guard determines a vessel’s category for 

purposes of implementation of the 

COFR rule. First, the commenter wanted 

to know what documents will serve as 

a reference point for the Coast Guard to 

determine whether a vessel has a single 

or double hull, and whether the Coast 

Guard would use a classification society 

survey or some other official document 

that is generally accepted as an accurate 

record of the hull construction. The 

same commenter asked what document 

will be used by the Coast Guard as the 

reference point for classifying a vessel 

in circumstances where a vessel has 

changed type (e.g., from a Very-large 

Crude Carrier tanker to a dry cargo 

vessel). 

The Coast Guard may confirm vessel 

details provided in the application for a 

certificate of financial responsibility, 

including any guarantee schedule, by 

referring to certificates of inspection and 

other normally available information 

sources such as Class Society surveys, 

Lloyds List, and Protection & Indemnity 

Club information. We have clarified the 

rule in response to these questions, 

consistent with legislative intent, by 

replacing the words ‘‘other than a vessel 

referred to in § 138.220(a)(1),’’ in 

§ 138.220(a)(2) and (4), with the term 

‘‘double hull’’, and by adding at the end 

of § 138.220(a) that the term ‘‘double 

hull’’ has the meaning used in 33 CFR 

part 157 and that the term ‘‘single hull’’ 

means any hull that is not a ‘‘double 

hull’’. (See, 152 Cong. Rec. H1640, 

H1663). 

The commenter also asked how the 

Coast Guard intends to enforce the 

imminent phase-out of single-hull tank 

vessels? Specifically, the commenter 

asked, in a hypothetical instance where 

a single-hull tank vessel owner 

misstates in an application for a 

guaranty that the vessel is double 

hulled: How would the Coast Guard 

determine that the vessel should not 

enter the U.S. Exclusive Economic 

Zone? What would the consequence be 

to the vessel owner? Would there be any 

consequence for the guarantor? 

Enforcement of the phase-out of singlehull tankers is outside the scope of this 

rulemaking. Furthermore, the 

consequences of any illegal vessel entry 

would depend in part on the 

circumstances of the entry and the 

applicable law(s). No change is made to 

the rule in response to these questions. 

Two commenters noted that the 

rulemaking did not increase the OPA 90 

limits of liability, under 33 U.S.C. 

2704(d), to reflect significant increases 

in the Consumer Price Index. One of the 

commenters noted that the notice of 

proposed rulemaking did not increase 

the limits of liability for facilities under 

the Coast Guard’s jurisdiction for 

inflation. The same commenter also 

stated that ‘‘the proposed increases for 

vessels, including tank barges, is at the 

2006 DRPA level only: No [Consumer 

Price Index] increases since 2006 are 

reflected in the proposed rule[,]’’ and 

noted that DRPA also amended the 

provision 33 U.S.C. 2704(d) authorizing 

increases to limits of liability based on 

the Consumer Price Index. 

The other commenter stated that ‘‘the 

limits of liability for non-tank vessels 

should be increased’’. The same 

commenter stated that the ‘‘proposed 

rulemaking fails to address the issue of 

limits of liability for oil handling 

facilities’’, and erroneously 

characterized the NPRM as proposing to 

change the limits of liability for vessels 

‘‘based on the consumer price index’’. 

These commenters misunderstand the 

scope of this rulemaking. This 

rulemaking does not adjust the OPA 90 

limits of liability for any source 

category. Nor does this rulemaking 

adjust any limits of liability for 

inflation. This rulemaking is primarily 

intended to conform the OPA 90 

financial responsibility ‘‘applicable 

amounts’’ for vessels under 33 U.S.C. 

2716 (at 33 CFR part 138, subpart A, 

§ 138.80(f)), to the limits of liability for 

vessels under OPA 90 as amended by 

DRPA. 

Although the rulemaking establishes a 

new subpart B setting forth the OPA 90 

limits of liability for vessels and 

deepwater ports, and establishes the 

framework for future regulatory changes 

to the OPA 90 limits of liability, 

including adjustments for inflation, the 

primary purpose of this rulemaking is to 

ensure consistency between the OPA 90 

vessel financial responsibility 

applicable amounts at § 138.80(f) and 

the OPA 90 limits of liability now in 

effect and as may hereafter be amended 

by regulation. Consumer Price Index 

increases to the OPA 90 limits of 

liability for Coast Guard delegated 

source categories, including oil 

handling facilities, other facilities, tank 

barges and other vessels, will be 

promulgated by regulation, in 

accordance with 33 U.S.C. 2704(d), in 

separate rulemakings. 

To eliminate some of the confusion 

concerning the scope of this rulemaking, 

we have eliminated the reference to the 

Consumer Price Index that appeared in 

proposed § 138.200. We also have edited 

the regulatory text of § 138.85 to clarify 

the distinction between the effective 

date of this rule and the date by which 

operators must establish evidence of 

financial responsibility in an amount 

equal to or greater than the new 

applicable amounts. Finally we have 

amended subpart B for clarity and to 

reserve space for future regulatory 

adjustments to the limits of liability 

under 33 U.S.C. 2704(d), including 

adjustments to reflect significant 

increases in the Consumer Price Index. 

One commenter commented favorably 

that the rulemaking would ‘‘eliminate 

the requirement for vessel operators to 

maintain their certificates of financial 

responsibility (COFR) on board ships. 

We support this direction towards 

electronic certification. We currently 

use the USCG online database for vessel 

contingency plans. In addition the 

addition of the online COFR database 

will prove to be beneficial for crossagency partnership work.’’ No changes 

have been made to the rule in response 

to this comment. 

One commenter, who submitted a 

comment after the close of the public 

comment period, asked for a 

supplemental rulemaking to treat all 

mobile offshore drilling units (MODUs) 

as double hull tank vessels for purposes 

of the financial responsibility 

requirements of 33 CFR part 138, 

subpart A. OPA 90 at 33 U.S.C. 2716(a) 

requires that evidence of financial 

responsibility be provided up to the 

applicable limits of liability. OPA 90 at 

33 U.S.C. 2704(b), in turn, provides that 

when a MODU is used as an offshore 

facility it is generally treated as a tank 

vessel for purposes of OPA 90. There, 

however, is no provision in OPA 90 

authorizing treatment of single-hulled 

MODUs when used as offshore facilities 

as double-hulled tank vessels for 

purposes of determining the applicable 

limit of liability or the financial 

responsibility requirements. The Coast 

Guard therefore will not initiate a 

supplemental rulemaking in response to 

this comment. 

V. Regulatory Analyses 

We developed this rule after 

considering numerous statutes and 

executive orders related to rulemaking. 

Below we summarize our analyses 

based on 13 of these statutes or 

executive orders. 

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A. Regulatory Planning and Review 

This rule is not a significant 

regulatory action under section 3(f) of 

Executive Order 12866, Regulatory 

Planning and Review, and does not 

require an assessment of potential costs 

and benefits under section 6(a)(3) of that 

Order. The Office of Management and 

Budget has not reviewed it under that 

Order. A final Regulatory Assessment is 

available in the docket as indicated 

under ADDRESSES. A summary of the 

Regulatory Assessment follows: 

On February 5, 2008, an NPRM was 

published (73 FR 6642) which included 

a supplemental Preliminary Regulatory 

Assessment of the costs and benefits of 

the proposed rule. The comment period 

ended on May 5, 2008. No comments 

were received on the Preliminary 

Regulatory Assessment. Prior to 

developing the Final Regulatory 

Assessment, we confirmed that the data 

contained in the Preliminary Regulatory 

Assessment had not changed. 

There are two regulatory costs of this 

rule: 

Regulatory Cost 1: The rule increases 

the cost to responsible parties associated 

with application for and certification of 

COFRs. This rule increases the cost per 

application from $150 to $200 and the 

cost per certification from $80 to $100. 

We estimate that there will be 1,600 

COFR application fees submitted per 

year and 8,600 COFR certification fees 

submitted per year for the foreseeable 

future. The aggregated annual increase 

in cost due to these fee increases is 

approximately $252,000 per year. 

Regulatory Cost 2: The rule increases 

the cost associated with establishing 

financial responsibility under 33 CFR 

part 138. This occurs in two ways: 

Responsible parties using commercial 

insurance as their method of guaranty 

will incur higher insurance premiums; 

and, responsible parties using selfinsurance as their method of guaranty 

will need to seek out and acquire 

commercial insurance for vessels they 

operate that are no longer eligible for 

self-insurance based on their working 

capital and net worth. 

There are approximately 16,982 

vessels using commercial insurance and 

823 vessels using self insurance 

methods of guaranty. The 10-year 

present value of this regulatory cost at 

a 3 percent discount rate is between 

$73.8 million and $83.4 million. The 10- 

year present value of this regulatory cost 

at a 7 percent discount rate is between 

$63.3 million and $71.9 million. The 

ranges reflect two vessel profiles that 

were developed and analyzed separately 

to account for the uncertainty, due to 

data gaps, of when existing singlehulled tank vessels will be phased out. 

The 10-year present value of the total 

cost of the rule (Regulatory Cost 1 + 

Regulatory Cost 2) at a 3 percent 

discount rate is between $76 million 

and $85.6 million. The 10-year present 

value of the total cost of the rule 

(Regulatory Cost 1 + Regulatory Cost 2) 

at a 7 percent discount rate is between 

$65.2 million and $73.8 million. 

There are two regulatory benefits of 

this rule: First, the rule aligns the 

financial responsibility amounts for 

vessels in 33 CFR part 138 in subpart A 

with the amended statutory limits of 

liability under OPA 90, as specified in 

33 U.S.C. 2704. This ensures the ability 

of responsible parties to meet their 

maximum liability limit under OPA 90 

in the event of an incident. Second, the 

rule eliminates the burden on owners 

and operators of maintaining COFRs 

onboard vessels. 

B. Small Entities 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601–612), we have considered 

whether this rule would have a 

significant economic impact on a 

substantial number of small entities. 

The term ‘‘small entities’’ comprises 

small businesses, not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. 

A Final Regulatory Flexibility 

Analysis (FRFA) discussing the impact 

of this rule on small entities is available 

in the docket where indicated under the 

ADDRESSES section of this preamble. 

The NPRM for this rulemaking 

published on February 5, 2008 (73 FR 

6642) included an Initial Regulatory 

Flexibility Analysis (IRFA) which 

quantified the economic impacts to 

small entities of the proposed rule. The 

comment period ended on May 5, 2008. 

No comments were received on either 

the IRFA or with respect to any aspects 

of the NPRM that might concern small 

entities. Prior to developing the FRFA, 

we confirmed that the data contained in 

the IRFA had not changed. 

In our analysis, we researched vessel 

operator size and revenue data using 

public and proprietary business 

databases. We then determined which 

entities were small based on the U.S. 

Small Business Administration’s criteria 

as they pertain to business size 

standards for all sectors of the North 

American Industry Classification 

System (NAICS). 

There are an estimated 600 small 

entities affected by this rule. We found 

that 82 distinct NAICS codes are 

represented in the population of small 

entities (of which 32 contained more 

than 5 entities). The available data 

indicate that: increases in insurance 

premiums will result in an average 

annual cost of $523 per vessel, increases 

in self-insurer costs will result in an 

average annual cost of $7,200 per vessel, 

and increases in COFR application fees 

will result in an average annual cost of 

$12 per vessel. 

The data further indicate that, of the 

small entities impacted, 92 percent will 

experience an annual economic impact 

that is less than 1 percent of their 

annual sales. Furthermore, 98 percent of 

the small entities will experience an 

economic impact less than 3 percent of 

their total sales. Two percent will 

experience an annual economic impact 

that is equal to or greater than 3 percent 

of their annual sales and none will 

experience an annual economic annual 

impact greater than 10 percent of their 

annual sales. Based on this analysis, we 

believe that implementation of this rule 

would not have a significant economic 

impact on a substantial number of small 

entities under 5 U.S.C. 605(b). 

Therefore, the Coast Guard certifies 

under 5 U.S.C. 605(b) that this final rule 

will not have a significant economic 

impact on a substantial number of small 

entities. 

C. Assistance for Small Entities 

Under section 213(a) of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121), 

we offered in the NPRM to assist small 

entities in understanding the rule so 

that they could better evaluate its effects 

on them and participate in the 

rulemaking. No assistance was 

requested from small entities. 

Small businesses may send comments 

on the actions of Federal employees 

who enforce, or otherwise determine 

compliance with, Federal regulations to 

the Small Business and Agriculture 

Regulatory Enforcement Ombudsman 

and the Regional Small Business 

Regulatory Fairness Boards. The 

Ombudsman evaluates these actions 

annually and rates each agency’s 

responsiveness to small business. If you 

wish to comment on actions by 

employees of the Coast Guard, call 

1–888–REG–FAIR (1–888–734–3247). 

D. Collection of Information 

This rule calls for a new collection of 

information under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3520). As defined in 5 CFR 1320.3(c), 

‘‘collection of information’’ comprises 

reporting, recordkeeping, monitoring, 

posting, labeling, and other, similar 

actions. The title and description of the 

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information collections, a description of 

those who must collect the information, 

and an estimate of the total annual 

burden follow. The estimate covers the 

time for reviewing instructions, 

searching existing sources of data, 

gathering and maintaining the data 

needed, and completing and reviewing 

the collection. 

Title: Financial Responsibility for 

Water Pollution (Vessels) and Limits of 

Liability. 

Summary of the Collection of 

Information: Not later than 90 days after 

the effective date of this regulation, 

operators are required to establish 

evidence of financial responsibility to 

the amended applicable amounts in 

§ 138.80(f). 

This rule eliminates the existing 

recordkeeping burden associated with 

33 CFR part 138, and revises the current 

information collection entitled, 

Financial Responsibility for Water 

Pollution (Vessels) (Office of 

Management and Budget control 

number 1625–0046, approved December 

7, 2006). 

Need for Information: This 

information collection is necessary to 

enforce this rule. Without this 

collection, it would not be possible for 

the Coast Guard to know which 

operators were in compliance with the 

amended financial responsibility 

applicable amounts determined under 

§ 138.80(f), and which were not. Vessels 

not in compliance will be subject to the 

penalties provided under § 138.140. 

Use of Information: The Coast Guard 

will use this information to verify that 

vessel operators have established 

evidence of financial responsibility to 

reflect the amended financial 

responsibility applicable amounts 

determined under § 138.80(f). 

Description of the Respondents: 

Operators, as this term is defined in 33 

CFR part 138, subpart A, and guarantors 

of vessels that require COFRs under 33 

CFR part 138, Subpart A. 

Number of Respondents: There are 

approximately 900 United States 

operators, 9,000 foreign operators and 

100 guarantors of vessels that will 

submit information to the Coast Guard. 

Frequency of Response: This is a onetime submission occurring not later than 

90 days after the effective date of this 

regulation. Subsequent submissions that 

may be required as a result of regulatory 

changes to limits of liability under 33 

U.S.C. 2704(d) are not included here 

because they will be addressed in future 

rulemakings. 

Burden of Response: 

Increased burden associated with 

reporting requirements: 10,000 

respondents × 1.0 hours per response = 

10,000 hours. 

Reduced burden associated with 

recordkeeping requirements: 9,900 

respondents × 0.0138 hours/respondent 

= 137 hours. 

Estimate of Total Annual Burden: We 

used the ‘‘All Occupations’’ average 

hourly wage of $18.21 per hour, found 

in the May 2005 National Occupational 

Employment and Wage Estimates 

United States, published by the 

Department of Labor’s Bureau of Labor 

Statistics, and applied a 43 percent 

overhead factor to estimate employee 

benefits to calculate the burdened labor 

rate. Bureau of Labor Statistics data 

show that total employee benefits is 

approximately 30 percent of total 

compensation. By applying a benefit 

factor of 43 percent to the hourly wage, 

we calculated total compensation: 

$18.21 per hour + ($18.21 per hour × 43 

percent) = $26 per hour. 

We then multiplied the number of net 

burden hours by the burdened labor rate 

calculated above. 

Increased burden associated with 

reporting requirements: 10,000 hours × 

$26 per hour = $260,000. 

Reduced burden associated with 

recordkeeping requirements: 137 hours 

× $26 per hour = $3,562. 

As required by 44 U.S.C. 3507(d), we 

submitted a copy of the proposed rule 

to the Office of Management and Budget 

(OMB) for its review of the collection of 

information. OMB has yet to complete 

its review of this collection. Therefore, 

§ 138.85 may not be enforced until this 

collection is approved by OMB. We will 

publish notice in the Federal Register of 

OMB’s decision to approve, modify, or 

disapprove the collection. 

You are not required to respond to a 

collection of information unless it 

displays a currently valid OMB control 

number. 

E. Federalism 

A rule has implications for federalism 

under Executive Order 13132, 

Federalism, if it has a substantial direct 

effect on State or local governments and 

would either preempt State law or 

impose a substantial direct cost of 

compliance on them. We have analyzed 

this rule under that Order and have 

determined that it does not have 

implications for federalism. 

F. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 or more in any one year. 

Though this rule will not result in such 

an expenditure, we do discuss the 

effects of this rule elsewhere in this 

preamble. 

G. Taking of Private Property 

This rule will not effect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. 

H. Civil Justice Reform 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

I. Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

does not create an environmental risk to 

health or risk to safety that may 

disproportionately affect children. 

J. Indian Tribal Governments 

This rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

K. Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. 

L. Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

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applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

M. Environment 

We have analyzed this rule under 

Commandant Instruction M16475.lD 

and Department of Homeland Security 

Management Directive 5100.1, which 

guide the Coast Guard in complying 

with the National Environmental Policy 

Act of 1969 (NEPA) (42 U.S.C. 4321– 

4370f), and have concluded that there 

are no factors in this case that would 

limit the use of a categorical exclusion 

under section 2.B.2 of the Instruction. 

Therefore, this rule is categorically 

excluded, under figure 2–1, paragraph 

(34)(a), of the Instruction, from further 

environmental documentation. This 

rulemaking only addresses the 

requirements under 33 U.S.C. 2716 for 

vessels to provide evidence of financial 

responsibility. It has no effect on the 

environment. A final environmental 

analysis checklist and a final categorical 

exclusion determination are available in 

the docket where indicated under 

ADDRESSES. 

List of Subjects in 33 CFR Part 138 

Hazardous materials transportation, 

Insurance, Oil pollution, Reporting and 

recordkeeping requirements, Water 

pollution control. 

■ For the reasons discussed in the 

preamble, the Coast Guard revises 33 

CFR part 138 as follows: 

PART 138—FINANCIAL 

RESPONSIBILITY FOR WATER 

POLLUTION (VESSELS) AND OPA 90 

LIMITS OF LIABILITY (VESSELS AND 

DEEPWATER PORTS) 

Subpart A—Financial Responsibility for 

Water Pollution (Vessels) 

Sec. 

138.10 Scope. 

138.15 Applicability. 

138.20 Definitions. 

138.30 General. 

138.40 Forms. 

138.45 Where to apply for and renew 

Certificates. 

138.50 Time to apply. 

138.60 Applications, general instructions. 

138.65 Issuance of Certificates. 

138.70 Renewal of Certificates. 

138.80 Financial responsibility, how 

established. 

138.85 Implementation schedule for 

amendments to applicable amounts by 

regulation. 

138.90 Individual and Fleet Certificates. 

138.100 Non-owning operator’s 

responsibility for identification. 

138.110 Master Certificates. 

138.120 Certificates, denial or revocation. 

138.130 Fees. 

138.140 Enforcement. 

138.150 Service of process. 

Subpart B—OPA 90 Limits of Liability 

(Vessels and Deepwater Ports) 

138.200 Scope. 

138.210 Applicability. 

138.220 Limits of liability. 

Authority: 33 U.S.C. 2716, 2716a; 42 U.S.C. 

9608, 9609; Sec. 1512 of the Homeland 

Security Act of 2002, Pub. L. 107–296 , Title 

XV, Nov. 25, 2002, 116 Stat. 2310 (6 U.S.C. 

552); E.O. 12580, Sec. 7(b), 3 CFR, 1987 

Comp., p. 198; E.O. 12777, 3 CFR, 1991 

Comp., p. 351; E.O. 13286, Sec. 89 (68 FR 

10619, Feb. 28, 2003); Department of 

Homeland Security Delegation Nos. 0170.1 

and 5110. Section 138.30 also issued under 

the authority of 46 U.S.C. 2103, 46 U.S.C. 

14302. 

Subpart A—Financial Responsibility 

for Water Pollution (Vessels) 

§ 138.10 Scope. 

This subpart sets forth the procedures 

by which an operator of a vessel must 

establish and maintain, for itself and for 

the owners and demise charterers of the 

vessel, evidence of financial 

responsibility required by Section 

1016(a) of the Oil Pollution Act of 1990, 

as amended (OPA 90) (33 U.S.C. 2716), 

and Section 108 of the Comprehensive 

Environmental Response, 

Compensation, and Liability Act of 

1980, as amended (CERCLA) (42 U.S.C. 

9608), equal to the total applicable 

amount determined under this subpart 

and sufficient to cover their liability 

arising under— 

(a) Sections 1002 and 1004 of OPA 90 

(33 U.S.C. 2702, 2704); and 

(b) Section 107 of CERCLA (42 U.S.C. 

9607). 

§ 138.15 Applicability. 

(a) This subpart applies to the 

operator as defined herein of — 

(1) A tank vessel of any size, and a 

foreign-flag vessel of any size, using the 

waters of the exclusive economic zone 

to transship or lighter oil (whether 

delivering or receiving) destined for a 

place subject to the jurisdiction of the 

United States; and 

(2) Any vessel using the navigable 

waters of the United States or any port 

or other place subject to the jurisdiction 

of the United States, including a vessel 

using an offshore facility subject to the 

jurisdiction of the United States, 

except— 

(i) A vessel that is 300 gross tons or 

less; or 

(ii) A non-self-propelled barge that 

does not carry oil as cargo or fuel and 

does not carry hazardous substances as 

cargo. 

(b) For the purposes of financial 

responsibility under OPA 90, a mobile 

offshore drilling unit is treated as a tank 

vessel when it is being used as an 

offshore facility and there is a discharge, 

or a substantial threat of a discharge, of 

oil on or above the surface of the water. 

A mobile offshore drilling unit is treated 

as a vessel other than a tank vessel 

when it is not being used as an offshore 

facility. 

(c) In addition to a non-self-propelled 

barge over 300 gross tons that carries 

hazardous substances as cargo, for the 

purposes of financial responsibility 

under CERCLA, this subpart applies to 

a self-propelled vessel over 300 gross 

tons, even if it does not carry hazardous 

substances. 

(d) This subpart does not apply to 

operators of public vessels. 

§ 138.20 Definitions. 

(a) As used in this subpart, the 

following terms have the meaning as set 

forth in— 

(1) Section 1001 of the Oil Pollution 

Act of 1990 (33 U.S.C. 2701), respecting 

the financial responsibility referred to in 

§ 138.10(a): claim, claimant, damages, 

discharge, exclusive economic zone, 

liable, liability, navigable waters, mobile 

offshore drilling unit, natural resources, 

offshore facility, oil, owner or operator, 

person, remove, removal, removal costs, 

security interest, and United States; and 

(2) Section 101 of the Comprehensive 

Environmental Response, 

Compensation, and Liability Act (42 

U.S.C. 9601), respecting the financial 

responsibility referred to in § 138.10(b): 

claim, claimant, damages, environment, 

hazardous substance, liable, liability, 

navigable waters, natural resources, 

offshore facility, owner or operator, 

person, release, remove, removal, 

security interest, and United States. 

(b) As used in this subpart — 

Acts means OPA 90 and CERCLA. 

Applicable amount means an amount 

of financial responsibility that must be 

demonstrated under this subpart, 

determined under § 138.80(f)(1) for OPA 

90 or § 138.80(f)(2) for CERCLA. 

Applicant means an operator who has 

applied for a Certificate or for the 

renewal of a Certificate under this 

subpart. 

Application means an Application for 

Vessel Certificate of Financial 

Responsibility (Water Pollution) (Form 

CG–5585), which can be obtained from 

the U.S. Coast Guard National Pollution 

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Funds Center as provided in §§ 138.40 

and 138.45. 

Cargo means goods or materials on 

board a vessel for purposes of 

transportation, whether proprietary or 

nonproprietary. A hazardous substance 

or oil carried solely for use aboard the 

carrying vessel is not Cargo. 

CERCLA means title I of the 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act of 1980, as amended (42 U.S.C. 

9601–9675). 

Certificant means an operator who has 

a current Certificate issued by the U.S. 

Coast Guard National Pollution Funds 

Center (NPFC) under this subpart. 

Certificate means a Vessel Certificate 

of Financial Responsibility (Water 

Pollution) (Form CG–5585) issued by 

the NPFC under this subpart, as 

provided in § 138.65. 

Day or days means calendar days. If 

a deadline specified in this subpart falls 

on a weekend or Federal holiday, the 

deadline will occur on the next working 

day. Compliance with a submission 

deadline will be determined based on 

the day the submission is received by 

NPFC. 

Director, NPFC means the head of the 

NPFC. 

E–COFR means the Electronic 

Certificate of Financial Responsibility 

web-based process located on the NPFC 

Web site (http://www.npfc.gov/cofr), 

which may be used by operators to 

apply for and renew Certificates. 

Financial guarantor means a 

guarantor who provides a financial 

guaranty under § 138.80(b)(4), and is 

distinct from an insurer, a self-insurer or 

a surety. 

Financial responsibility means the 

statutorily required financial ability to 

meet a responsible party’s liability 

under the Acts. 

Fish tender vessel and fishing vessel 

have the same meaning as set forth in 

46 U.S.C. 2101. 

Fuel means any oil or hazardous 

substance used or capable of being used 

to produce heat or power by burning, 

including power to operate equipment. 

A hand-carried pump with not more 

than five gallons of fuel capacity, that is 

neither integral to nor regularly stored 

aboard a non-self-propelled barge, is not 

equipment. 

Guarantor means any person, other 

than a responsible party, who provides 

evidence of financial responsibility 

under the Acts on behalf of a vessel’s 

responsible parties. A responsible party 

who can qualify as a self-insurer under 

§ 138.80(b)(3) may act as both a selfinsurer of vessels owned, operated or 

demise chartered by the responsible 

party, and as a financial guarantor for 

the responsible parties of other vessels 

under § 138.80(b)(4). 

Hazardous material means a liquid 

material or substance that is— 

(1) Flammable or combustible; 

(2) A hazardous substance designated 

under Section 311(b) of the Federal 

Water Pollution Control Act (33 U.S.C. 

1321(b)); or 

(3) Designated a hazardous material 

under the Hazardous Materials 

Transportation Act, Section 104 (46 

U.S.C. 5103(a)) (1994). 

Incident means any occurrence or 

series of occurrences having the same 

origin, involving one or more vessels, 

facilities, or any combination thereof, 

resulting in the discharge or substantial 

threat of discharge of oil into or upon 

the navigable waters or adjoining 

shorelines or the exclusive economic 

zone. 

Insurer is a type of guarantor and 

means one or more insurance 

companies, associations of 

underwriters, ship owners’ protection 

and indemnity associations, or other 

persons, each of which must be 

acceptable to the Director, NPFC. 

Master Certificate means a Certificate 

issued under this subpart to a person 

who is a builder, repairer, scrapper, 

lessor, or seller of a vessel and is acting 

as the vessel’s operator. 

Offshore supply vessel has the same 

meaning as set forth in 46 U.S.C. 2101. 

OPA 90 means the Oil Pollution Act 

of 1990 (33 U.S.C. 2701, et seq.). 

Operator means a person who is an 

owner, a demise charterer, or other 

contractor, who conducts the operation 

of, or who is responsible for the 

operation of, a vessel. A builder, 

repairer, scrapper, lessor, or seller who 

is responsible, or who agrees by contract 

to become responsible, for a vessel is an 

operator. A time or voyage charterer that 

does not assume responsibility for the 

operation of a vessel is not an operator 

for the purposes of this subpart. 

Owner means any person holding 

legal or equitable title to a vessel. In a 

case where a U.S. Coast Guard 

Certificate of Documentation or 

equivalent document has been issued, 

the owner is considered to be the person 

or persons whose name or names appear 

thereon as owner. Owner does not 

include a person who, without 

participating in the management of a 

vessel, holds indicia of ownership 

primarily to protect the owner’s security 

interest in the vessel. 

Public vessel means a vessel owned or 

bareboat chartered by the United States, 

or by a State or political subdivision 

thereof, or by a foreign nation, except 

when the vessel is engaged in 

commerce. 

Responsible party, for purposes of 

OPA 90 financial responsibility has the 

same meaning as defined at 33 U.S.C. 

2701(32), and for purposes of CERCLA 

financial responsibility means any 

person who is an owner or operator, as 

defined at 42 U.S.C. 9601(20), including 

any person chartering a vessel by 

demise. 

Self-elevating lift vessel means a 

vessel with movable legs capable of 

raising its hull above the surface of the 

sea and that is an offshore work boat 

(such as a work barge) that does not 

engage in drilling operations. 

Tank vessel means a vessel (other 

than an offshore supply vessel, a fishing 

vessel or a fish tender vessel of 750 

gross tons or less that transfers fuel 

without charge to a fishing vessel 

owned by the same person, or a towing 

or pushing vessel (tug) simply because 

it has in its custody a tank barge) that 

is constructed or adapted to carry, or 

that carries, oil or liquid hazardous 

material in bulk as cargo or cargo 

residue, and that— 

(1) Is a vessel of the United States; 

(2) Operates on the navigable waters; 

or 

(3) Transfers oil or hazardous material 

in a place subject to the jurisdiction of 

the United States. 

Total applicable amount means the 

amount determined under § 138.80(f)(3). 

Vessel means every description of 

watercraft or other artificial contrivance 

used, or capable of being used, as a 

means of transportation on water. 

§ 138.30 General. 

(a) The regulations in this subpart set 

forth the procedures for an operator of 

a vessel subject to this subpart to 

demonstrate that the responsible parties 

of the vessel are financially able to meet 

their potential liability for costs and 

damages in the applicable amounts set 

forth in this subpart at § 138.80(f). 

Although the owners, operators, and 

demise charterers of a vessel are strictly, 

jointly and severally liable under OPA 

90 and CERCLA for the costs and 

damages resulting from each incident or 

release or threatened release, together 

they need only establish and maintain 

evidence of financial responsibility 

under this subpart equal to the 

combined OPA 90 and CERCLA limits 

of liability arising from a single incident 

and a single release, or threatened 

release. Only that portion of the total 

applicable amount of financial 

responsibility demonstrated under this 

subpart with respect to— 

(1) OPA 90 is required to be made 

available by a vessel’s responsible 

parties and guarantors for the costs and 

damages related to an incident where 

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there is not also a release or threatened 

release; and 

(2) CERCLA is required to be made 

available by a vessel’s responsible 

parties and guarantors for the costs and 

damages related to a release or 

threatened release where there is not 

also an incident. A guarantor (or a selfinsurer for whom the exceptions to 

limitations of liability are not 

applicable), therefore, is not required to 

apply the entire total applicable amount 

of financial responsibility demonstrated 

under this subpart to an incident 

involving oil alone or a release or 

threatened release involving a 

hazardous substance alone. 

(b) Where a vessel is operated by its 

owner or demise charterer, or the owner 

or demise charterer is responsible for its 

operation, the owner or demise 

charterer is considered to be the 

operator for purposes of this subpart, 

and must submit the Application and 

requests for renewal for a Certificate. In 

all other cases, the vessel operator must 

submit the Application or requests for 

renewal. 

(c) For a United States-flag vessel, the 

applicable gross tons or gross tonnage, 

as referred to in this part, is determined 

as follows: 

(1) For a documented U.S. vessel 

measured under both 46 U.S.C. Chapters 

143 (Convention Measurement) and 145 

(Regulatory Measurement). The vessel’s 

regulatory gross tonnage is used to 

determine whether the vessel exceeds 

300 gross tons where that threshold 

applies under the Acts. If the vessel’s 

regulatory gross tonnage is determined 

under the Dual Measurement System in 

46 CFR part 69, subpart D, the higher 

gross tonnage is the regulatory gross 

tonnage for the purposes of determining 

whether the vessel meets the 300 gross 

ton threshold. The vessel’s gross 

tonnage as measured under the 

International Convention on Tonnage 

Measurement of Ships, 1969 

(Convention), is used to determine the 

vessel’s required applicable amounts of 

financial responsibility, and limit of 

liability under Section 1004 of OPA 90 

(33 U.S.C. 2704), including subpart B of 

this part, and Section 107 of CERCLA 

(42 U.S.C. 9607). 

(2) For all other United States vessels. 

The vessel’s gross tonnage under 46 CFR 

part 69 is used for determining the 

vessel’s 300 gross ton threshold, the 

required applicable amounts of financial 

responsibility, and limits of liability 

under Section 1004 of OPA 90 (33 

U.S.C. 2704), including subpart B of this 

part, and Section 107 of CERCLA (42 

U.S.C. 9607). If the vessel’s gross 

tonnage is determined under the Dual 

Measurement System, the higher gross 

tonnage is used in all determinations. 

(d) For a vessel of a foreign country 

that is a party to the Convention, gross 

tons or gross tonnage, as referred to in 

this part, is determined as follows: 

(1) For a vessel assigned, or presently 

required to be assigned, gross tonnage 

under Annex I of the Convention. The 

vessel’s gross tonnage as measured 

under Annex I of the Convention is used 

for determining the 300 gross ton 

threshold, if applicable, the required 

applicable amounts of financial 

responsibility, and limits of liability 

under Section 1004(a) of OPA 90 (33 

U.S.C. 2704), including subpart B of this 

part, and under Section 107 of CERCLA 

(42 U.S.C. 9607). 

(2) For a vessel not presently required 

to be assigned gross tonnage under 

Annex I of the Convention. The highest 

gross tonnage that appears on the 

vessel’s U.S. Coast Guard Certificate of 

Documentation or equivalent document 

and that is acceptable to the Coast 

Guard under 46 U.S.C. chapter 143 is 

used for determining the 300 gross ton 

threshold, if applicable, the required 

applicable amounts of financial 

responsibility, and limits of liability 

under Section 1004 of OPA 90 (33 

U.S.C. 2704), including subpart B of this 

part, and Section 107 of CERCLA (42 

U.S.C. 9607). If the vessel has no 

document, or the gross tonnage 

appearing on the document is not 

acceptable under 46 U.S.C. chapter 143, 

the vessel’s gross tonnage is determined 

by applying the Convention 

Measurement System under 46 CFR part 

69, subpart B, or if applicable, the 

Simplified Measurement System under 

46 CFR part 69, subpart E. The 

measurement standards applied are 

subject to applicable international 

agreements to which the United States 

Government is a party. 

(e) For a vessel of a foreign country 

that is not a party to the Convention, 

gross tons or gross tonnage, as referred 

to in this part, is determined as follows: 

(1) For a vessel measured under laws 

and regulations found by the 

Commandant to be similar to Annex I of 

the Convention. The vessel’s gross 

tonnage under the similar laws and 

regulations is used for determining the 

300 gross ton threshold, if applicable, 

the required applicable amounts of 

financial responsibility, and limits of 

liability under Section 1004 of OPA 90 

(33 U.S.C. 2704), including subpart B of 

this part, and Section 107 of CERCLA 

(42 U.S.C. 9607). The measurement 

standards applied are subject to 

applicable international agreements to 

which the United States Government is 

a party. 

(2) For a vessel not measured under 

laws and regulations found by the 

Commandant to be similar to Annex I of 

the Convention. The vessel’s gross 

tonnage under 46 CFR part 69, subpart 

B, or, if applicable, subpart E, is used for 

determining the 300 gross ton threshold, 

if applicable, the required applicable 

amount of financial responsibility, and 

the limits of liability under Section 1004 

of OPA 90 (33 U.S.C. 2704), including 

subpart B of this part, and Section 107 

of CERCLA (42 U.S.C. 9607). The 

measurement standards applied are 

subject to applicable international 

agreements to which the United States 

is a party. 

(f) A person who agrees to act as a 

guarantor or a self-insurer is bound by 

the vessel’s gross tonnage as determined 

under paragraphs (c), (d), or (e) of this 

section, regardless of what gross tonnage 

is specified in an Application or 

guaranty form submitted under this 

subpart. Guarantors, however, may limit 

their liability under a guaranty of 

financial responsibility to the applicable 

gross tonnage appearing on a vessel’s 

International Tonnage Certificate or 

other official, applicable certificate of 

measurement and will not incur any 

greater liability with respect to that 

guaranty, except when the guarantors 

knew or should have known that the 

applicable tonnage certificate was 

incorrect. 

§ 138.40 Forms. 

All forms referred to in this subpart 

may be obtained from NPFC by 

requesting them in writing at the 

address given in § 138.45(a) or by 

clicking on the Forms link at the NPFC 

E–COFR Web site, http://www.npfc.gov/ 

cofr. 

§ 138.45 Where to apply for and renew 

Certificates. 

(a) An operator must submit all 

Applications for a Certificate and all 

requests for renewal of a Certificate, 

together with all evidence of financial 

responsibility required under § 138.80 

and all fees required under § 138.130, to 

the NFPC at the following address: U.S. 

Coast Guard, National Pollution Funds 

Center (Cv), 4200 Wilson Boulevard, 

Suite 1000, Arlington, VA 22203–1804, 

telephone (202) 493–6780, Telefax (202) 

493–6781; or electronically using 

NPFC’s E–COFR Web-based process at 

http://www.npfc.gov/cofr. 

(b) All requests you have for 

assistance in completing Applications, 

requests for renewal and other 

submissions under this subpart, 

including telephone inquiries, should 

be directed to the U.S. Coast Guard 

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53700 Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations 

NPFC at the addresses in paragraph (a) 

of this section. 

§ 138.50 Time to apply. 

(a) A vessel operator who wishes to 

obtain a Certificate must submit a 

completed Application form and all 

required supporting evidence of 

financial responsibility, and must pay 

all applicable fees, at least 21 days prior 

to the date the Certificate is required. 

The Director, NPFC, may grant an 

extension of this 21-day deadline upon 

written request and for good cause 

shown. An applicant seeking an 

extension of this deadline must set forth 

the reasons for the extension request 

and deliver the request to the Director, 

NPFC, at least 15 days before the 

deadline. The Director, NPFC, will not 

consider a request for an extension of 

more than 60 days. 

(b) The Director, NPFC, generally 

processes Applications and requests for 

renewal in the order in which they are 

received at the NPFC. 

§ 138.60 Applications, general 

instructions. 

(a) You may obtain an Application for 

Vessel Certificate of Financial 

Responsibility (Water Pollution) (Form 

CG–5585) by following the instructions 

in §§ 138.40 and 138.45. 

(b) Your Application and all 

supporting documents must be in 

English, and express all monetary terms 

in United States dollars. 

(c) An authorized official of the 

applicant must sign the signature page 

of the Application. The title of the 

signer must be shown in the space 

provided on the Application. The 

operator must submit the original 

signature page of the Application to 

NPFC in hard copy. 

(d) If the signer is not identified on 

the Application as an individual (sole 

proprietor) applicant, a partner in a 

partnership applicant, or a director, 

chief executive officer, or any other duly 

authorized officer of a corporate 

applicant, the Application must be 

accompanied by a written statement 

certifying the signer’s authority to sign 

on behalf of the applicant. 

(e) If, before the issuance of a 

Certificate, the applicant becomes aware 

of a change in any of the facts contained 

in the Application or supporting 

documentation, the applicant must, 

within 5 business days of becoming 

aware of the change, notify the Director, 

NPFC, in writing, of the changed facts. 

§ 138.65 Issuance of Certificates. 

Upon the satisfactory demonstration 

of financial responsibility and payment 

of all fees due, the Director, NPFC, will 

issue a Vessel Certificate of Financial 

Responsibility (Water Pollution) (Form 

CG–5585) in electronic form. Copies of 

the Certificate may be downloaded from 

NPFC’s E–COFR Web site. 

§ 138.70 Renewal of Certificates. 

(a) The operator of a vessel required 

to have a Certificate under this subpart 

must submit a written or E–COFR 

request for renewal of the Certificate to 

the NPFC at least 21 days, but not 

earlier than 90 days, before the 

expiration date of the Certificate. A 

letter may be used for this purpose. The 

request for renewal must comply in all 

other respects with the requirements in 

§ 138.60 concerning Applications. The 

Director, NPFC, may waive this 21-day 

requirement for good cause shown. 

(b) The operator must identify in the 

request for renewal any changes which 

have occurred since the original 

Application for a Certificate was filed, 

and must set forth the correct 

information in full. 

§ 138.80 Financial responsibility, how 

established. 

(a) General. In addition to submitting 

an Application, requests for renewal, 

and fees, an applicant must file, or 

cause to be filed, with the Director, 

NPFC, evidence of financial 

responsibility acceptable to the Director, 

NPFC, in an amount equal to the total 

applicable amount determined under 

§ 138.80(f)(3). A guarantor may file the 

evidence of financial responsibility on 

behalf of the applicant directly with the 

Director, NPFC. 

(b) Methods. An applicant or 

certificant must establish and maintain 

evidence of financial responsibility by 

one or more of the following methods: 

(1) Insurance. By filing with the 

Director, NPFC, an Insurance Guaranty 

(Form CG–5586) or, when applying for 

a Master Certificate under § 138.110, a 

Master Insurance Guaranty (Form CG– 

5586–1), executed by not more than four 

insurers that have been found 

acceptable by, and remain acceptable to, 

the Director, NPFC, for purposes of this 

subpart. 

(2) Surety bond. By filing with the 

Director, NPFC, a Surety Bond Guaranty 

(Form CG–5586–2), executed by not 

more than 10 acceptable surety 

companies certified by the United States 

Department of the Treasury with respect 

to the issuance of Federal bonds in the 

maximum penal sum of each bond to be 

issued under this subpart. 

(3) Self-insurance. By filing with the 

Director, NPFC, the financial statements 

specified in paragraph (b)(3)(i) of this 

section for the applicant’s fiscal year 

preceding the date of Application and 

by demonstrating that the applicant or 

certificant maintains, in the United 

States, working capital and net worth 

each in amounts equal to or greater than 

the total applicable amount determined 

under § 138.80(f)(3), based on a vessel 

carrying hazardous substances as cargo. 

As used in this paragraph, working 

capital means the amount of current 

assets located in the United States, less 

all current liabilities anywhere in the 

world; and net worth means the amount 

of all assets located in the United States, 

less all liabilities anywhere in the 

world. For each fiscal year after the 

initial filing, the applicant or certificant 

must also submit statements as follows: 

(i) Initial and annual filings. An 

applicant or certificant must submit 

annual, current, and audited nonconsolidated financial statements 

prepared in accordance with Generally 

Accepted Accounting Principles, and 

audited by an independent Certified 

Public Accountant in accordance with 

Generally Accepted Auditing Standards. 

These financial statements must be 

accompanied by an additional statement 

from the Treasurer (or equivalent 

official) of the applicant or certificant 

certifying both the amount of current 

assets and the amount of total assets 

included in the accompanying balance 

sheet, which are located in the United 

States. If the financial statements cannot 

be submitted in non-consolidated form, 

a consolidated statement may be 

submitted if accompanied by an 

additional statement prepared by the 

same Certified Public Accountant, 

verifying the amount by which the 

applicant’s or certificant’s— 

(A) Total assets located in the United 

States exceed its total (i.e., worldwide) 

liabilities; and 

(B) Current assets located in the 

United States exceed its total (i.e., 

worldwide) current liabilities. This 

additional Certified Public Accountant 

statement must specifically name the 

applicant or certificant, indicate that the 

amounts so verified relate only to the 

applicant or certificant, apart from any 

other affiliated entity, and identify the 

consolidated financial statement to 

which it applies. 

(ii) Semiannual self-insurance 

submissions. When the self-insuring 

applicant’s or certificant’s demonstrated 

net worth is not at least ten times the 

total applicable amount of financial 

responsibility determined under 

§ 138.80(f)(3), the applicant’s or 

certificant’s Treasurer (or equivalent 

official) must file affidavits with the 

Director, NPFC, covering the first six 

months of the applicant’s or certificant’s 

current fiscal year. The affidavits must 

state that neither the working capital 

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nor the net worth have, during the first 

six months of the current fiscal year, 

fallen below the applicant’s or 

certificant’s required total applicable 

amount of financial responsibility as 

determined under this subpart. 

(iii) Additional self-insurance 

submissions. A self-insuring applicant 

or certificant— 

(A) Must, upon request of the 

Director, NPFC, within the time 

specified in the request, file additional 

financial information; and 

(B) Must notify the Director, NPFC, 

within 5 business days of the date the 

applicant or certificant knows, or has 

reason to know, that its working capital 

or net worth has fallen below the total 

applicable amounts required by this 

subpart. 

(iv) Time for self-insurance filings. All 

required annual financial statements 

must be received by the Director, NPFC, 

within 90 days after the close of the 

applicant’s or certificant’s fiscal year, 

and all affidavits required by paragraph 

(b)(3)(ii) of this section must be received 

by the Director, NPFC, within 30 days 

after the close of the applicable sixmonth period. The Director, NPFC, may 

grant an extension of the time limits for 

filing the annual financial statements, 

semi-annual affidavits or additional 

financial information upon written 

request and for good cause shown. An 

applicant or certificant seeking an 

extension of any deadline must set forth 

the reasons for the extension request 

and deliver the request to the Director, 

NPFC, at least 15 days before the annual 

financial statements, affidavits or 

additional information are due. The 

Director, NPFC, will not consider a 

request for an extension of more than 60 

days. 

(v) Failure to submit. The Director, 

NPFC, may deny or revoke a Certificate 

for failure of the applicant or certificant 

to timely file any statement, data, 

notification, or affidavit required by 

paragraph (b)(3) of this section. 

(vi) Waiver of working capital. The 

Director, NPFC, may waive the working 

capital requirement for any applicant or 

certificant that— 

(A) Is a regulated public utility, a 

municipal or higher-level governmental 

entity, or an entity operating solely as a 

charitable, non-profit organization 

qualifying under Section 501(c) Internal 

Revenue Code. The applicant or 

certificant must demonstrate in writing 

that the grant of a waiver would benefit 

a local public interest; or 

(B) Demonstrates in writing that 

working capital is not a significant 

factor in the applicant’s or certificant’s 

financial condition. An applicant’s or 

certificant’s net worth in relation to the 

amount of its required total applicable 

amount of financial responsibility and a 

history of stable operations are the 

major elements considered by the 

Director, NPFC. 

(4) Financial Guaranty. By filing with 

the Director, NPFC, a Financial 

Guaranty (Form CG–5586–3), or, when 

applying for a Master Certificate, a 

Master Financial Guaranty (Form CG– 

5586–4), executed by not more than four 

financial guarantors, including, but not 

limited to, a parent or affiliate 

acceptable to the Director, NPFC. A 

financial guarantor must comply with 

all of the self-insurance provisions of 

paragraph (b)(3) of this section. In 

addition, a person who is a financial 

guarantor for more than one applicant or 

certificant must have working capital 

and net worth no less than the aggregate 

total applicable amounts of financial 

responsibility determined under 

§ 138.80(f)(3) provided as a financial 

guarantor for each applicant or 

certificant, plus the total applicable 

amount required to be demonstrated by 

a self-insurer under this subpart if the 

financial guarantor is also acting as a 

self-insurer. 

(5) Other evidence of financial 

responsibility. The Director, NPFC, will 

not accept a self-insurance method other 

than the one described in paragraph 

(b)(3) of this section. An applicant may 

in writing request that the Director, 

NPFC, accept a method different from 

one described in paragraph (b)(1), (2), or 

(4) of this section to demonstrate 

evidence of financial responsibility. An 

applicant submitting a request under 

this paragraph must submit the request 

to the Director, NPFC, at least 45 days 

prior to the date the Certificate is 

required. The applicant must describe 

in detail the method proposed, the 

reasons why the applicant does not 

wish to use or is unable to use one of 

the methods described in paragraph 

(b)(1), (2), or (4) of this section, and how 

the proposed method assures that the 

responsible parties for the vessel are 

able to fulfill their obligations to pay 

costs and damages in the event of an 

incident or a release or threatened 

release. The Director, NPFC, will not 

accept a method under this paragraph 

that merely deletes or alters a provision 

of one of the methods described in 

paragraph (b)(1), (2), or (4) of this 

section (for example, one that alters the 

termination clause of the Insurance 

Guaranty (Form CG–5586). An applicant 

that makes a request under this 

paragraph must provide the Director, 

NPFC, a proposed guaranty form that 

includes all the elements described in 

paragraphs (c) and (d) of this section. A 

decision of the Director, NPFC, not to 

accept a method requested by an 

applicant under this paragraph is final 

agency action. 

(c) Forms—(1) Multiple guarantors. 

Four or fewer insurers (a lead 

underwriter is considered to be one 

insurer) may jointly execute an 

Insurance Guaranty (Form CG–5586) or 

a Master Insurance Guaranty (Form CG– 

5586–1). Ten or fewer sureties 

(including lead sureties) may jointly 

execute a Surety Bond Guaranty (Form 

CG–5586–2). Four or fewer financial 

guarantors may jointly execute a 

Financial Guaranty (Form CG–5586–3). 

If more than one insurer, surety, or 

financial guarantor executes the relevant 

form— 

(i) Each is bound for the payment of 

sums only in accordance with the 

percentage of vertical participation 

specified on the relevant form for that 

insurer, surety, or financial guarantor. 

Participation in the form of layering 

(tiers, one in excess of another) is not 

acceptable; only vertical participation 

on a percentage basis and participation 

with no specified percentage allocation 

is acceptable. If no percentage of 

participation is specified for an insurer, 

surety, or financial guarantor, the 

liability of that insurer, surety, or 

financial guarantor is joint and several 

for the total of the unspecified portions; 

and 

(ii) The guarantors must designate a 

lead guarantor having authority to bind 

all guarantors for actions required of 

guarantors under the Acts, including but 

not limited to receipt of designation of 

source, advertisement of a designation, 

and receipt and settlement of claims. 

(2) Operator name. An applicant or 

certificant must ensure that each form 

submitted under this subpart sets forth 

in full the correct legal name of the 

vessel operator to whom a Certificate is 

to be issued. 

(d) Direct Action—(1) 

Acknowledgment. Any evidence of 

financial responsibility filed with the 

Director, NPFC, under this subpart must 

contain an acknowledgment by each 

insurer or other guarantor that an action 

in court by a claimant (including a 

claimant by right of subrogation) for 

costs or damages arising under the 

provisions of the Acts, may be brought 

directly against the insurer or other 

guarantor. The evidence of financial 

responsibility must also provide that, in 

the event an action is brought under the 

Acts directly against the insurer or other 

guarantor, the insurer or other guarantor 

may invoke only the following rights 

and defenses: 

(i) The incident, release, or threatened 

release was caused by the willful 

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misconduct of the person for whom the 

guaranty is provided. 

(ii) Any defense that the person for 

whom the guaranty is provided may 

raise under the Acts. 

(iii) A defense that the amount of a 

claim or claims, filed in any action in 

any court or other proceeding, exceeds 

the amount of the guaranty with respect 

to an incident or with respect to a 

release or threatened release. 

(iv) A defense that the amount of a 

claim or claims that exceeds the amount 

of the guaranty, which amount is based 

on the gross tonnage of the vessel as 

entered on the vessel’s International 

Tonnage Certificate or other official, 

applicable certificate of measurement, 

except when the guarantor knew or 

should have known that the applicable 

tonnage certificate was incorrect. 

(v) The claim is not one made under 

either of the Acts. 

(2) Limitation on guarantor liability. A 

guarantor that participates in any 

evidence of financial responsibility 

under this subpart will be liable because 

of that participation, with respect to an 

incident or a release or threatened 

release, in any proceeding only for the 

amount and type of costs and damages 

specified in the evidence of financial 

responsibility. A guarantor will not be 

considered to have consented to direct 

action under any law other than the 

Acts, or to unlimited liability under any 

law or in any venue, solely because of 

the guarantor’s participation in 

providing any evidence of financial 

responsibility under this subpart. In the 

event of any finding that liability of a 

guarantor exceeds the amount of the 

guaranty provided under this subpart, 

that guaranty is considered null and 

void with respect to that excess. 

(e) Public access to data. Financial 

data filed with the Director, NPFC, by 

an applicant, certificant, and any other 

person is considered public information 

to the extent required by the Freedom of 

Information Act (5 U.S.C. 552) and 

permitted by the Privacy Act (5 U.S.C. 

552a). 

(f) Total applicable amount. The total 

applicable amount is determined as 

follows: 

(1) The applicable amount under OPA 

90 is equal to the applicable vessel limit 

of liability, which is determined as 

provided in subpart B of this part. 

(2) The applicable amount under 

CERCLA is determined as follows: 

(i) For a vessel over 300 gross tons 

carrying a hazardous substance as cargo, 

the greater of $5,000,000 or $300 per 

gross ton. 

(ii) For any other vessel over 300 gross 

tons, the greater of $500,000 or $300 per 

gross ton. 

(3) The total applicable amount is the 

applicable amount determined under 

paragraph (f)(1) of this section plus the 

applicable amount determined under 

paragraph (f)(2) of this section. 

§ 138.85 Implementation schedule for 

amendments to applicable amounts by 

regulation. 

Each operator of a vessel described in 

§ 138.15 must establish evidence of 

financial responsibility acceptable to the 

Director, NPFC, in an amount equal to 

or greater than the total applicable 

amounts determined under § 138.80(f), 

by not later than January 15, 2009. In 

the event an applicable amount 

determined under § 138.80(f) is 

thereafter amended by regulation, each 

operator of a vessel described in 

§ 138.15 must establish evidence of 

financial responsibility acceptable to the 

Director, NPFC, in an amount equal to 

or greater than the amended total 

applicable amount, by not later than 90 

days after the effective date of the final 

rule, unless another date is required by 

statute or specified in the amending 

regulation. 

§ 138.90 Individual and Fleet Certificates. 

(a) The Director, NPFC, issues an 

individual Certificate for each vessel 

listed on a completed Application or 

request for renewal when the Director, 

NPFC, determines that acceptable 

evidence of financial responsibility has 

been provided and appropriate fees 

have been paid, except where a Fleet 

Certificate is issued under this section 

or where a Master Certificate is issued 

under § 138.110. Each Certificate of any 

type issued under this subpart is issued 

only in the name of a vessel operator 

and is effective for not more than 3 

years from the date of issuance, as 

indicated on each Certificate. An 

authorized official of the applicant may 

submit to the Director, NPFC, a letter 

requesting that additional vessels be 

added to a previously submitted 

Application for an individual 

Certificate. The letter must set forth all 

information required in item 5 of the 

Application form. The authorized 

official must also file, or cause to be 

filed with the Director, NPFC, 

acceptable evidence of financial 

responsibility, if required, and must pay 

all applicable certification fees for the 

additional vessels. 

(b) An operator of a fleet of two or 

more barges that are not tank vessels 

and that from time to time may be 

subject to this subpart (e.g., a hopper 

barge over 300 gross tons when carrying 

oily metal shavings or similar cargo) 

may apply to the Director, NPFC, for 

issuance of a Fleet Certificate, so long as 

the operator of such a fleet is a selfinsurer or arranges with an acceptable 

guarantor to cover, automatically, all 

such barges for which the operator may 

from time to time be responsible. 

(c) A person must not make any 

alteration on any copy of a Certificate 

issued under this subpart. 

(d) If, at any time after a Certificate 

has been issued, a certificant becomes 

aware of a change in any of the facts 

contained in the Application or 

supporting documentation, the 

certificant must notify the Director, 

NPFC, in writing within 10 days of 

becoming aware of the change. A vessel 

or operator name change or change of a 

guarantor must be reported by the 

operator as soon as possible by telefax 

or other electronic means to the 

Director, NPFC, and followed by a 

written notice sent within 3 business 

days. (See, § 138.45, Where to apply for 

and renew Certificates, for contact 

information). 

(e) Except as provided in § 138.90(f), 

at the moment a certificant ceases to be 

the operator of a vessel for any reason, 

including a vessel that is scrapped or 

transferred to a new operator, the 

individual Certificate naming the vessel 

is void and its further use is prohibited. 

In that case, the certificant must, within 

10 business days of the Certificate 

becoming void, submit the following 

information in writing to the Director, 

NPFC: 

(1) The number of the individual 

Certificate and the name of the vessel. 

(2) The date and reason why the 

certificant ceased to be the operator of 

the vessel. 

(3) The location of the vessel on the 

date the certificant ceased to be the 

operator. 

(4) The name and mailing address of 

the person to whom the vessel was sold 

or transferred. 

(f) In the event of the temporary 

transfer of custody of an unmanned 

barge with a Certificate under this 

subpart, where the certificant 

transferring the barge continues to be 

liable under the Acts and continues to 

maintain on file with the Director, 

NPFC, acceptable evidence of financial 

responsibility with respect to the barge, 

the existing Certificate remains in effect 

in respect to that vessel, and a 

temporary new Certificate is not 

required for the vessel. The temporary 

transferee is encouraged to require the 

transferring certificant to acknowledge 

in writing that the transferring 

certificant agrees to remain responsible 

for pollution liabilities. 

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Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations 53703 

§ 138.100 Non-owning operator’s 

responsibility for identification. 

(a) Each operator that is not an owner 

of a vessel with a Certificate under this 

subpart, other than an unmanned barge, 

must ensure that the original or a legible 

copy of the demise charter-party (or 

other written document on the owner’s 

letterhead, signed by the vessel owner, 

which specifically identifies the vessel 

operator named on the Certificate) is 

maintained on board the vessel. 

(b) The demise charter-party or other 

document required by paragraph (a) of 

this section must be presented, upon 

request, for examination and copying, to 

a United States Government official. 

§ 138.110 Master Certificates. 

(a) A contractor or other person who 

is responsible for a vessel in the 

capacity of a builder, scrapper, lessor, or 

seller (including a repairer who agrees 

to be responsible for a vessel under its 

custody) may apply for a Master 

Certificate instead of applying for an 

individual Certificate or Fleet Certificate 

for each vessel. A Master Certificate 

covers all of the vessels subject to this 

subpart held by the applicant solely for 

purposes of construction, repair, 

scrapping, lease, or sale. A vessel which 

is being operated commercially in any 

business venture, including the business 

of building, repairing, scrapping, 

leasing, or selling (e.g., a slop barge used 

by a shipyard) cannot be covered by a 

Master Certificate. Any vessel for which 

a Certificate is required, but which is 

not eligible for a Master Certificate, 

must be covered by either an individual 

Certificate or a Fleet Certificate. 

(b) An applicant for a Master 

Certificate must submit an Application 

form in the manner prescribed by 

§§ 138.40 through 138.60. An applicant 

must establish evidence of financial 

responsibility in accordance with 

§ 138.80, by submission, for example, of 

an acceptable Master Insurance 

Guaranty Form, Surety Bond Guaranty 

Form, Master Financial Guaranty Form, 

or acceptable self-insurance 

documentation. An Application for a 

Master Certificate must be completed in 

full, except for Item 5. The applicant 

must make the following statement in 

Item 5: ‘‘This is an application for a 

Master Certificate. The largest tank 

vessel to be covered by this application 

is [insert applicable gross tons] gross 

tons. The largest vessel other than a tank 

vessel is [insert applicable gross tons] 

gross tons.’’ The dollar amount of 

financial responsibility evidenced by 

the applicant must be sufficient to meet 

the amount required under this subpart. 

(c) Each Master Certificate issued by 

the Director, NPFC, indicates— 

(1) The name of the applicant (i.e., the 

builder, repairer, scrapper, lessor, or 

seller); 

(2) The date of issuance and 

termination, encompassing a period of 

not more than 3 years; and 

(3) The gross tons of the largest tank 

vessel and gross tons of the largest 

vessel other than a tank vessel eligible 

for coverage by that Master Certificate. 

(The Master Certificate does not identify 

the name of each vessel covered by the 

Certificate.) 

(d) Each additional vessel which does 

not exceed the respective tonnages 

indicated on the Master Certificate and 

which is eligible for coverage by a 

Master Certificate is automatically 

covered by that Master Certificate. 

Before acquiring a vessel, by any means, 

including conversion of an existing 

vessel, that would have the effect of 

increasing the certificant’s required 

applicable amount of financial 

responsibility (above that provided for 

issuance of the existing Master 

Certificate), the certificant must submit 

to the Director, NPFC, the following: 

(1) Evidence of increased financial 

responsibility. 

(2) A new certification fee. 

(3) Either a new Application or a 

letter amending the existing Application 

to reflect the new gross tonnage which 

is to be indicated on a new Master 

Certificate. 

(e) A person to whom a Master 

Certificate has been issued must submit 

to the Director, NPFC, every six months 

beginning the month after the month in 

which the Master Certificate is issued, a 

report indicating the name, previous 

name, type, and gross tonnage of each 

vessel covered by the Master Certificate 

during the preceding six-month 

reporting period and indicating which 

vessels, if any, are tank vessels. 

§ 138.120 Certificates, denial or 

revocation. 

(a) The Director, NPFC, may deny a 

Certificate when an applicant— 

(1) Willfully or knowingly makes a 

false statement in connection with an 

Application or other submission or 

filing under this subpart for an initial or 

renewal Certificate; 

(2) Fails to establish acceptable 

evidence of financial responsibility as 

required by this subpart; 

(3) Fails to pay the required 

Application or certification fees; 

(4) Fails to comply with or respond to 

lawful inquiries, regulations, or orders 

of the Coast Guard pertaining to the 

activities subject to this subpart; or 

(5) Fails to timely file with the 

Director, NPFC, required statements, 

data, notifications, or affidavits. 

(b) The Director, NPFC, may revoke a 

Certificate when a certificant— 

(1) Willfully or knowingly makes a 

false statement in connection with an 

Application for an initial or a renewal 

Certificate, or in connection with any 

other filing required by this subpart; 

(2) Fails to comply with or respond to 

lawful inquiries, regulations, or orders 

of the Coast Guard pertaining to the 

activities subject to this subpart; or 

(3) Fails to timely file with the 

Director, NPFC, required statements, 

data, notifications, or affidavits. 

(c) A Certificate is immediately 

invalid, and considered revoked, 

without prior notice, when the 

certificant— 

(1) Fails to maintain acceptable 

evidence of financial responsibility as 

required by this subpart; 

(2) Is no longer the responsible 

operator of the vessel or fleet in 

question; or 

(3) Alters any copy of a Certificate. 

(d) The Director, NPFC, will advise 

the applicant or certificant, in writing, 

of the intention to deny or revoke a 

Certificate under paragraph (a) or (b) of 

this section and will state the reason for 

the decision. Written advice from the 

Director, NPFC, that an incomplete 

Application will be considered 

withdrawn unless it is completed 

within a stated period, is the equivalent 

of a denial. 

(e) If the intended revocation under 

paragraph (b) of this section is based on 

failure to timely file required financial 

statements, data, notifications, or 

affidavits with the Director, NPFC, the 

revocation is effective 10 days after the 

date of the notice of intention to revoke, 

unless, before the effective date of the 

revocation, the certificant demonstrates 

to the satisfaction of the Director, NPFC, 

that the required documents were 

timely filed or have been filed. 

(f) If the intended denial is based on 

paragraph (a)(1) or (a)(4) of this section, 

or the intended revocation is based on 

paragraph (b)(1) or (b)(2) of this section, 

the applicant or certificant may request, 

in writing, an opportunity to present 

information for the purpose of showing 

that the applicant or certificant is in 

compliance with the subpart. The 

request must be received by the 

Director, NPFC, within 10 days after the 

date of the notification of intention to 

deny or revoke. A Certificate subject to 

revocation under this paragraph remains 

valid until the Director, NPFC, issues a 

written decision revoking the 

Certificate. 

(g) An applicant or certificant whose 

Certificate has been denied under 

paragraph (a) of this section or revoked 

under paragraph (b) or (c) of this section 

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53704 Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations 

may request the Director, NPFC, to 

reconsider the denial or revocation. The 

certificant must submit a request for 

reconsideration, in writing, to the 

Director, NPFC, within 20 days of the 

date of the denial or revocation. The 

certificant must state the reasons for 

requesting reconsideration. The 

Director, NPFC, will generally issue a 

written decision on the request within 

30 days of receipt, provided that, if the 

Director, NPFC, does not issue a 

decision within 30 days, the request for 

reconsideration will be deemed to have 

been denied, and the denial or 

revocation will be deemed to have been 

affirmed. Unless the Director, NPFC, 

issues a decision reversing the 

revocation, a revoked Certificate 

remains invalid. A decision by the 

Director, NPFC, affirming a denial or 

revocation, is final agency action. 

§ 138.130 Fees. 

(a) The Director, NPFC, will not issue 

or renew a Certificate until the fees set 

forth in paragraphs (c) and (d) of this 

section have been paid. 

(b) For those using E-COFR, credit 

card payment is required. Otherwise, 

fees must be paid in United States 

currency by check, draft, or postal 

money order made payable to the ‘‘U.S. 

Coast Guard’’. 

(c) An applicant who submits an 

Application under this subpart must 

pay a non-refundable Application fee of 

$200 for each Application (i.e., 

individual Certificate, Fleet Certificate, 

or Master Certificate), except as follows: 

(1) An Application for an additional 

(i.e., supplemental) individual 

Certificate, 

(2) A request to amend or renew an 

existing Certificate, or 

(3) An Application submitted within 

90 days following a revocation or other 

invalidation of a Certificate. 

(d) In addition to the Application fee 

of $200, an applicant must pay a 

certification fee of $100 for each vessel 

for which a Certificate is requested. An 

applicant must pay the $100 

certification fee for each vessel listed in, 

or later added to, an Application for an 

individual Certificate(s). An applicant 

must pay the $100 certification fee to 

renew or to reissue a Certificate for any 

reason, including, but not limited to, a 

vessel or operator name change. 

(e) A certification fee is refunded, 

upon receipt of a written request, if the 

Application is denied or withdrawn 

before issuance of the Certificate. 

Overpayments of Application and 

certification fees are refunded, on 

request, only if the refund is for $100 or 

more. However, any overpayments not 

refunded will be credited, for a period 

of 3 years from the date of receipt of the 

monies by the Coast Guard, for the 

applicant’s possible future use or 

transfer to another applicant under this 

subpart. 

§ 138.140 Enforcement. 

(a) Any person who fails to comply 

with this subpart with respect to 

evidence of financial responsibility 

under Section 1016 of OPA 90 (33 

U.S.C. 2716) is subject to a civil penalty 

under Section 4303(a) of OPA 90 (33 

U.S.C. 2716a(a)). In addition, under 

Section 4303(b) of OPA 90 (33 U.S.C. 

2716a(b)), the Attorney General may 

secure such relief as may be necessary 

to compel compliance with the OPA 90 

requirements of this subpart, including 

termination of operations. Further, any 

person who fails to comply with this 

subpart with respect to evidence of 

financial responsibility under Section 

108(a) of CERCLA (42 U.S.C. 9608(a)), is 

subject to a Class I administrative civil 

penalty, a Class II administrative civil 

penalty or a judicial penalty under 

Section 109 of CERCLA (42 U.S.C. 

9609). 

(b) The Secretary of the Department in 

which the U.S. Coast Guard is operating 

will withhold or revoke the clearance 

required by 46 U.S.C. 60105 to any 

vessel subject to this subpart that has 

not provided the evidence of financial 

responsibility required by this subpart. 

(c) The Coast Guard may deny entry 

to any port or place in the United States 

or the navigable waters of the United 

States, and may detain at a port or place 

in the United States in which it is 

located, any vessel subject to this 

subpart, which has not provided the 

evidence of financial responsibility 

required by this subpart. 

(d) Any vessel subject to this subpart 

which is found operating in the 

navigable waters without having been 

issued a Certificate or maintained the 

necessary evidence of financial 

responsibility as required by this 

subpart is subject to seizure by, and 

forfeiture to, the United States. 

(e) Knowingly and willfully using an 

altered copy of a Certificate, or using a 

copy of a revoked, expired or voided 

Certificate for anything other than 

recordkeeping purposes, is prohibited. If 

a Certificate is revoked, has expired or 

is rendered void for any reason, the 

certificant must cease using all copies of 

the Certificate for anything other than 

the operator’s own historical 

recordkeeping purposes. 

§ 138.150 Service of process. 

(a) When executing the forms required 

by this subpart, each applicant, 

certificant and guarantor must designate 

thereon a person located in the United 

States as its agent for service of process 

for purposes of this subpart and for 

receipt of notices of responsible party 

designations and presentations of claims 

under the Acts (collectively referred to 

herein as ‘‘service of process’’). Each 

designated agent must acknowledge the 

agency designation in writing unless the 

agent has already furnished the Director, 

NPFC, with a master (i.e., blanket) 

agency acknowledgment showing that 

the agent has agreed in advance to act 

as the United States agent for service of 

process for the applicant, certificant, or 

guarantor in question. 

(b) If any applicant, certificant, or 

guarantor desires, for any reason, to 

change any designated agent, the 

applicant, certificant, or guarantor must 

notify the Director, NPFC, of the change. 

If a master agency acknowledgment for 

the new agent is not on file with NPFC, 

the applicant, certificant, or guarantor 

must furnish to the Director, NPFC, all 

the relevant information, including the 

new agent’s acknowledgment, required 

in accordance with paragraph (a) of this 

section. In the event of death, disability, 

unavailability, or similar event of a 

designated agent, the applicant, 

certificant, or guarantor must designate 

another agent in accordance with 

paragraph (a) of this section within 10 

days of knowledge of any such event. 

The applicant, certificant, or guarantor 

must submit the new designation to the 

Director, NPFC. The Director, NPFC, 

may deny or revoke a Certificate if an 

applicant, certificant, or guarantor fails 

to designate and maintain an agent for 

service of process. 

(c) If a designated agent cannot be 

served because of death, disability, 

unavailability, or similar event, and 

another agent has not been designated 

under this section, then service of 

process on the Director, NPFC, will 

constitute valid service of process. 

Service of process on the Director, 

NPFC, will not be effective unless the 

server— 

(1) Sends the applicant, certificant, or 

guarantor, as applicable (by registered 

mail, at the last known address on file 

with the Director, NPFC), a copy of each 

document served on the Director, NPFC; 

and 

(2) Attests to this registered mailing, 

at the time process is served upon the 

Director, NPFC, indicating that the 

intent of the mailing is to effect service 

of process on the applicant, certificant, 

or guarantor and that service on the 

designated agent is not possible, stating 

the reason why. 

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Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations 53705 

Subpart B—OPA 90 Limits of Liability 

(Vessels and Deepwater Ports) 

§ 138.200 Scope. 

This subpart sets forth the limits of 

liability for vessels and deepwater ports 

under section 1004 of the Oil Pollution 

Act of 1990, as amended (33 U.S.C. 

2704) (OPA 90), including adjustments 

pursuant to section 1004(d) of OPA 90 

(33 U.S.C. 2704(d)). 

§ 138.210 Applicability. 

This subpart applies to you if you are 

a responsible party for a vessel as 

defined under Section 1001(37) of OPA 

90 (33 U.S.C. 2701(37)) or a deepwater 

port as defined under Section 1001(6) of 

OPA 90 (33 U.S.C. 2701(6)), unless your 

OPA 90 liability is unlimited under 

Section 1004(c) of OPA 90 (33 U.S.C. 

2704(c)). 

§ 138.220 Limits of liability. 

(a) Vessels. (1) The OPA 90 limits of 

liability for vessels are— 

(i) For a tank vessel greater than 3,000 

gross tons with a single hull, including 

a single-hull vessel fitted with double 

sides only or a double bottom only, the 

greater of $3,000 per gross ton or 

$22,000,000; 

(ii) For a tank vessel greater than 

3,000 gross tons with a double hull, the 

greater of $1,900 per gross ton or 

$16,000,000. 

(iii) For a tank vessel less than or 

equal to 3,000 gross tons with a single 

hull, including a single-hull vessel fitted 

with double sides only or a double 

bottom only, the greater of $3,000 per 

gross ton or $6,000,000. 

(iv) For a tank vessel less than or 

equal to 3,000 gross tons with a double 

hull, the greater of $1,900 per gross ton 

or $4,000,000. 

(v) For any other vessel, the greater of 

$950 per gross ton or $800,000. 

(2) As used in this paragraph (a), the 

term double hull has the meaning set 

forth in 33 CFR part 157 and the term 

single hull means any hull other than a 

double hull. 

(b) Deepwater ports. The OPA 90 

limits of liability for deepwater ports 

are— 

(1) Generally. For any deepwater port 

other than a deepwater port with a limit 

of liability established by regulation 

under Section 1004(d)(2) of OPA 90 (33 

U.S.C. 2704(d)(2)) and set forth in 

paragraph (b)(2) of this section, 

$350,000,000; and 

(2) For deepwater ports with limits of 

liability established by regulation under 

Section 1004(d)(2) of OPA 90 (33 U.S.C. 

2704(d)(2)): 

(i) For the Louisiana Offshore Oil Port 

(LOOP), $62,000,000; 

(ii) [Reserved]. 

(c) [Reserved]. 

Dated: September 3, 2008. 

Craig A. Bennett, 

Director, National Pollution Funds Center, 

United States Coast Guard. 

[FR Doc. E8–21554 Filed 9–16–08; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF AGRICULTURE 

Forest Service 

36 CFR Parts 215 and 218 

RIN 0596–AC15 

Predecisional Administrative Review 

Process for Hazardous Fuel Reduction 

Projects Authorized Under the Healthy 

Forests Restoration Act of 2003 

AGENCY: Forest Service, USDA. 

ACTION: Final rule. 

SUMMARY: This document makes final 

the interim rule that was published on 

January 9, 2004, with minor changes to 

both parts 215 and 218. This rule 

establishes a process by which the 

public may file objections to seek 

administrative review of proposed 

hazardous fuel reduction projects 

authorized by the Healthy Forests 

Restoration Act of 2003 (HFRA), Public 

Law 108–148. Section 105 of the act 

directs the Secretary of Agriculture to 

publish final regulations following 

public comment on the interim final 

regulations. This final rule refines the 

HFRA objection procedures based on 

public comment and agency experience 

applying the interim final rule. These 

changes add clarity to the procedural 

direction, describe authorized 

hazardous fuel reduction projects not 

subject to objection, clarify notification 

requirements, clarify the eligibility 

criteria for who may file an objection, 

provide for the incorporation of certain 

documents into objections by reference, 

and clarify how timeliness of objection 

filing will be determined. 

DATE: Effective Date: This rule is 

effective October 17, 2008. 

ADDRESSES: The Forest Service objection 

procedures for proposed hazardous fuel 

reduction projects authorized by the 

HFRA are set out in 36 CFR part 218, 

which is available electronically on the 

World Wide Web at http:// 

www.fs.fed.us/objections/ 

objections_related.php#app_work . 

Single paper copies are available by 

contacting Kevin Lawrence, Forest 

Service-USDA, Ecosystem Management 

Coordination Staff (Mail Stop 1104), 

1400 Independence Avenue, SW., 

Washington, DC 20250–1104. 

Additional information can be found at 

http://www.fs.fed.us/emc/applit/. 

FOR FURTHER INFORMATION CONTACT: 

Assistant Director for Appeals and 

Litigation Deborah Beighley at (202) 

205–1277 or Appeal Specialist Kevin 

Lawrence at (202) 205–2613. 

Individuals who use telecommunication 

devices for the deaf may call the Federal 

Information Relay Service at 1–800– 

877–8339 between 8 a.m. and 8 p.m. 

Eastern Standard Time, Monday 

through Friday. 

SUPPLEMENTARY INFORMATION: On 

December 3, 2003, President George W. 

Bush signed into law the Healthy 

Forests Restoration Act of 2003 (HFRA) 

to reduce the threat of destructive 

wildfires while upholding 

environmental standards and 

encouraging early public input during 

planning processes. 

One of the provisions of the Act 

(section 105) required the Secretary of 

Agriculture to issue an interim final rule 

to establish a predecisional 

administrative review process for 

hazardous fuel reduction projects 

authorized by the HFRA and to 

promulgate final regulations after 

providing for public comments. 

On January 9, 2004, the Forest Service 

published an interim final rule and 

request for comments (69 FR 1529). The 

interim final rule established a 

predecisional administrative review 

process at 36 CFR part 218, subpart A, 

and 36 CFR part 215 was amended to 

exempt hazardous fuel reduction 

projects authorized by the HFRA from 

the notice, comment, and appeal 

procedures set out at part 215. 

In giving direct notice of the interim 

final rule, the Department also set a 90- 

day comment period and invited 

comments from individuals, industry, 

national organizations, and Federal 

agencies. A total of 67 comment letters 

were received from individuals, 

representatives of State government 

agencies, environmental groups, 

professional organizations, and 

industry. Each comment received 

consideration in the development of the 

final rule. 

The Department has also used the 

intervening time since the comment 

period on the interim final rule to gain 

additional experience with its 

implementation. Forest Service records 

indicate approximately 80 decisions 

have been issued for fuels reduction 

projects under HFRA Title I authority 

since the beginning of 2005. The 

Agency’s application of the predecisional objection process to these 

projects has provided valuable insight to 

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