CFR 2001 Title33 Vol2 ChapI SubchapM

8/12/2019 CFR 2001 Title33 Vol2 ChapI SubchapM

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SUBCHAPTER MMARINE POLLUTION FINANCIALRESPONSIBILITY AND COMPENSATION

PART 133 OIL SPILL LIABILITY TRUSTFUND; STATE ACCESS

Sec.133.1 Purpose.133.3 Definitions.133.5 Requests: General.133.7 Requests: Amount.133.9 Requests: Where made.

133.11 Requests: Contents.133.13 Removal actions eligible for funding.133.15 Determination of eligibility for fund-

ing.133.17 Conduct of removal actions.133.19 Recordkeeping.133.21 Records retention.133.23 Investigation to determine the source

and responsible party.133.25 Notification of Governor s designee.

A UTHORITY : 33 U.S.C. 2712(e); E.O. 12777 (3CFR, 1991 Comp., p. 351); 49 CFR 1.46.

S OURCE : CGD 92 014, 57 FR 53969, Nov. 13,1992, unless otherwise noted.

133.1 Purpose.This part prescribes procedures for

the Governor of a State to request pay-ments from the Oil Spill Liability trustFund (the Fund) for oil pollution re-moval costs under section 1012(d)(1) of the Oil Pollution Act of 1990 (the Act)(33 U.S.C. 2712(d)(1)).

133.3 Definitions.(a) As used in this part, the following

terms have the same meaning as setforth in section 1001 of the Act (33U.S.C. 2701): discharge , exclusiveeconomic zone , Fund , incident , National Contingency Plan , navi-gable waters , oil , remove , re-moval , removal costs , responsibleparty , State , and United States .

(b) As used in this part Act means Title I of the Oil Pollution

Act of 1990 (33 U.S.C. 2701 through 2719).Director, NPFC, means the person in

charge of the U.S. Coast Guard Na-tional Pollution Funds Center or thatperson s authorized representative.

NPFC means the U.S. Coast GuardNational Pollution Funds Center, 4200Wilson Boulevard, suite 1000, Arling-ton, Virginia 22203 1804.

On-Scene Coordinator or OSC meansthe Federal official predesignated bythe Environmental Protection Agencyor the U.S. Coast Guard to direct andcoordinate all efforts for removal of adischarge, or the mitigation or the pre-vention of a substantial threat of a dis-charge, of oil.

Removal action means an incident-

specific activity taken under this partto contain or remove a discharge, or tomitigate or prevent a substantialthreat of a discharge, of oil.

133.5 Requests: General.(a) Upon a request submitted in ac-

cordance with this part by the Gov-ernor of a State or his or her des-ignated State official, the OSC may ob-tain a Federal Project Number (FPN)and a ceiling not to exceed $250,000 perincident for removal costs. The re-moval costs must be for the immediateremoval of a discharge, or the mitiga-tion or prevention of a substantialthreat of a discharge, of oil.

(b) Before a request under this part ismade, the State official shall ensurethat the procedures in the NationalContingency Plan (40 CFR part 300) fornotifying Federal authorities of thedischarge or threat of discharge havebeen met.

(c) The Federal Grant and Coopera-tive Agreement Act of 1977 (31 U.S.C.6301 6308) and 49 CFR parts 18, 20, 29,and 90 apply to Fund monies obligatedfor payment under this part.

133.7 Requests: Amount.(a) The amount of funds that may be

requested under this part (1) Is limited to the amount antici-

pated for immediate removal action fora single oil pollution incident, but, inany event, may not exceed $250,000 perincident;

(2) Must be for removal costs con-sistent with the National ContingencyPlan; and

(3) Must be reasonable for the re-moval actions proposed, consideringsuch factors as quantity and composi-tion of the oil, weather conditions and

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33 CFR Ch. I (7 101 Edition) 133.9

customary costs of similar services inthe locale.

(b) The funds requested are obligatedonly to the extent they are determinedto be for immediate removal actionswhich are reasonable and otherwise eli-gible for payment under this part.

133.9 Requests: Where made.Requests for access to the Fund

under 133.5 must be made by tele-phone or other rapid means to the OSC.

133.11 Request: Contents.In making a request for access to the

Fund, the person making the requestshall

(a) Indicate that the request is aState access request under 33 CFR part133;

(b) Give his or her name, title, de-partment, and State;

(c) Describe the incident in sufficientdetail to allow a determination of ju-risdiction, including at a minimum thedate of the occurrence, type of productdischarged, estimated quantity of thedischarge, body of water involved, andproposed removal actions for whichfunds are being requested under thispart; and

(d) Indicate the amount of fundsbeing requested.

133.13 Removal actions eligible forfunding.

To be eligible for funding under thispart, each removal action must meetthe following:

(a) Must be for an incident, occurringafter August 18, 1990, which resulted ina discharge, or the substantial threatof a discharge, of oil into or upon thenavigable waters or adjoining shore-lines.

(b) Must comply with the NationalContingency Plan.

(c) Must be an immediate removalaction.

133.15 Determination of eligibilityfor funding.

Upon receipt of the informationunder 133.11 and, if necessary, fromother sources determined to be appro-priate at his or her discretion, the OSCwill determine whether the proposedremoval actions meet the requirementsof 133.13. If necessary, the OSC may

seek further clarification of the pro-posed actions from the State official.The OSC shall expeditiously notify theState official and the Director, NPFC,of his or her decision.

133.17 Conduct of removal actions.

Removal actions funded under thispart must be coordinated with the OSCand conducted in accordance with theNational Contingency Plan.

133.19 Recordkeeping.

(a) The State official shall maintaindetailed records of expenditures madefrom the funds provided under thispart, including records of

(1) Daily expenditures for each indi-vidual worker, giving the individual sname, title or position, activity per-formed, time on task, salary or hourlyrate, travel costs, per diem, out-of-pocket or extraordinary expenses, andwhether the individual is normallyavailable for oil spill removal;

(2) Equipment purchased or rentedeach day, with the daily or hourly rate;

(3) Miscellaneous materials andexpendables purchased each day; and

(4) Daily contractor or consultantfees, including costs for their personneland contractor-owned or rented equip-ment, as well as that of any subcon-tractor.

(b) The State official shall submit acopy of these records and a summarydocument stating the total of all ex-penditures made to the NPFC officialspecified in 133.25(c) within thirtydays after completion of the removalactions. A copy of these documentsshall also be submitted to the cog-nizant OSC.

(c) Upon request of the OSC or theNPFC, the State official shall makethe original records available for in-

spection.(d) If, after inspecting the records,

the Director, NPFC, determines thatexpenditures by a State official fromfunds obligated under this part werenot eligible for funding under this partand the expenditures were not madewith the good faith understanding thatthey were eligible under this part, theDirector, NPFC, may seek reimburse-ment to the Fund from the State.



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Coast Guard, DOT 135.3

133.21 Records retention.(a) The State official shall maintain

all records for ten years following com-pletion of the removal actions.

(b) If any litigation, claim, negotia-tion, audit, cost recovery, or other ac-tion involving the records has beenstarted before the expiration of theten-year period, the records must be re-tained until completion of the actionand resolution of all issues which arisefrom it, or until the end of the regularten-year period, whichever is later.

133.23 Investigation to determine thesource and responsible party.

(a) The State official shall promptlymake a thorough investigation to de-termine the source of the incident andthe responsible party.

(b) Upon completion of the investiga-tion, the State official shall forwardthe results of the investigation andcopies of the supporting evidence iden-tifying the source and the responsibleparty to both the cognizant OSC andthe NPFC official specified in 133.25(c).

133.25 Notification of Governor s des-ignee.

(a) If the Governor of a State antici-pates the need to access the Fundunder this part, he or she must advisethe NPFC in writing of the specific in-dividual who is designated to make re-quests under this part.

(b) This designation must include theindividual s name, address, telephonenumber, and title or capacity in whichemployed.

(c) The information required by para-graph (b) of this section must be for-warded to the Chief, Case ManagementDivision, National Pollution FundsCenter, Suite 1000, 4200 Wilson Boule-vard, Arlington, Virginia 22203 1804.

PART 135 OFFSHORE OILPOLLUTION COMPENSATION FUND

Subpart A General

Sec.135.1 Purpose.135.3 Applicability.135.5 Definitions.135.7 Delegation Fund Administrator.135.9 Fund address.

Subpart B Levy of Fees

135.101 Purpose.135.103 Levy and payment of barrel fee on

OCS oil.

Subpart C Financial Responsibility forOffshore Facilities

135.201 Applicability.135.203 Amount required.135.204 Submission of evidence.135.205 Methods of establishing.135.207 Insurance as evidence.135.209 Guaranty as evidence.135.210 Indemnity as evidence.135.211 Surety bond as evidence.135.213 Qualification as self-insurer.135.215 Certification.135.219 Notification of changes affecting

certification.135.221 Reapplication for certification.135.223 Certificates, denial or revocation.

Subpart D Notification of PollutionIncidents

135.303 Definitions.135.305 Notification procedures.135.307 Notification contents.

Subpart E Access, Denial, and Detention

135.401 Access to vessel, Certificates of Fi-nancial Responsibility.

135.403 Sanctions for failure to produce ves-sel Certificates of Financial Responsi-bility.

135.405 Appeal provisions.

A UTHORITY : 33 U.S.C. 2701 2719; E.O. 12777,56 FR 54757; 49 CFR 1.46.

S OURCE : CGD 77 055, 44 FR 16868, Mar. 19,1979, unless otherwise noted.

Subpart A General 135.1 Purpose.

(a) This part prescribes the policies,procedures, and administrative prac-tices regarding offshore oil pollution li-ability and compensation, includingthe administration and general oper-ation of the fund established underTitle III of the Outer Continental Shelf Lands Act Amendments of 1978 (Pub. L.95 372, 43 U.S.C. 1811 et. seq.).

135.3 Applicability.(a) This part applies to each person

who:(1) Owns oil obtained from the Outer

Continental Shelf when the oil in pro-duced;



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33 CFR Ch. I (7 101 Edition) 135.5

(2) Owns, operates, or is the guar-antor of the owner or operator of anyvessel;

(3) Owns, operates, or is the guar-antor of the owner or operator of anyoffshore facility;

(4) Sustains an economic loss as aconsequence of oil pollution arisingfrom Outer Continental Shelf activi-ties; or

(5) Otherwise has responsibilitiesunder Title III of the Act and the regu-lations in this part.

135.5 Definitions.(a) As used in this part, the following

terms shall have the same meaning asdefined in section 301 of Title III of theOuter Continental Shelf Lands ActAmendments of 1978 (Pub. L. 95 372): barrel ; claim ; discharge ; facil-ity ; Fund ; guarantor ; incident ; offshore facility ; oil pollution ; operator ; owner ; person ; per-son in charge ; public vessel ; and vessel .

(b) As used in this part:(1) Act means Title III of the Outer

Continental Shelf Lands Act Amend-ments of 1978 (Pub. L. 95 372), entitled

Offshore Oil Spill Pollution Fund .(2) Captain of the Port means a Coast

Guard officer designated as Captain of the Port for the areas described in Part3 of this chapter, or that person s au-thorized representative or, where thereis no Captain of the Port area, the Dis-trict Commander.

(3) Commandant means the Com-mandant of the Coast Guard or thatperson s authorized representative.

(4) District Commander means theCoast Guard officer commanding aCoast Guard District described in Part3 of this chapter, or that person s au-thorized representative.

(5) Fund Administrator means the per-son to whom the authority and func-tions of the Commandant as adminis-trator of the Fund are delegated.

(6) Oil means petroleum, includingcrude oil or any fraction or residuetherefrom and natural gas condensate,except that the term does not includenatural gas.

(7) Outer Continental Shelf or OCS means outer Continental Shelf as de-fined in section 2(a) of the Outer Conti-

nental Shelf Lands Act (43U.S.C.1331(a)).

135.7 Delegation Fund Adminis-trator.

(a) The Fund Administrator is dele-gated authority to perform those func-tions assigned or delegated to the Sec-retary of Transportation under the Actnot reserved by the Secretary of Trans-portation or the Commandant.

(b) The Fund Administrator may re-delegate and authorize successive re-

delegations of the authority granted inparagraph (a) of this section within thecommand under which that person hasjurisdiction or to members of the Fundstaff.

135.9 Fund address.

The address to which correspondencerelating to the Coast Guard s adminis-tration of the Fund should be directedis: U.S. Coast Guard National PollutionFunds Center, 4200 Wilson Boulevard,Suite 1000, Arlington, VA 22203 1804.

[CGD 86 032, 52 FR 23175, June 18, 1987, asamended by CGD 88 052, 53 FR 25120, July 1,1988; USCG 1998 3799, 63 FR 35530, June 30,

1998]

Subpart B Levy of Fees 135.101 Purpose.

(a) The purpose of this subpart is tostate the general requirements con-cerning the levy of fees.

135.103 Levy and payment of barrelfee on OCS oil.

(a) A fee of $.03 per barrel is levied onall oil produced on the OCS and is im-posed upon the owner of the oil whensuch oil is produced.

(b) The owner of oil obtained from

the OCS shall, for the purpose of com-puting the barrel fee levied in para-graph (a) of this section, measure OCSoil production by employing the meth-ods and criteria of the Minerals Man-agement Service contained in 30 CFR250.180.

(c) The barrel fee levied in paragraph(a) of this section applies whenever theunobligated Fund balance is less than$200,000,000.



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(d) Payment of the fee levied in para-graph (a) of this section is made in ac-cordance with the fee collection regu-lations of the IRS at 26 CFR part 301, 301.9001. Federal government entitle-ment to royalty oil does not constituteownership of oil at time of production.The Fund Administrator advises theIRS when the unobligated Fund bal-ance requires starting or stopping thecollection of the barrel fee levied inthis section, so the IRS may provideappropriate notice to affected ownersof OCS oil.

[CGD 88 050, 53 FR 52997, Dec. 30, 1988, asamended by CGD 90 005, 55 FR 17268, Apr. 24,1990]

Subpart C Financial Responsi-bility for Offshore Facilities

135.201 Applicability.(a) This subpart applies to the owner

or operator of each offshore facility re-quired by the Act to establish andmaintain evidence of financial respon-sibility.

(b) For the purpose of this subpart:(1) All structures, including plat-

forms, wells, and pipelines, are consid-ered a single offshore facility if theyare physically connected, located up-stream of the point of custody transfer,within the same oil field, and underone ownership.

(2) If separate parts of a structure,including platforms and pipelines, areowned separately, each part havingcommon ownership is considered a sep-arate offshore facility.

(3) A mobile offshore drilling unit isconsidered an offshore facility from themoment a drill shaft or other deviceconnected to the unit first touches theseabed or connects to a well for thepurposes of exploration, development,or production of oil until drilling iscompleted and the unit is no longer at-tached to the well or drill hole by anydevice.

(4) A mobile offshore drilling unitconsidered an offshore facility underparagraph (b)(3) of this section remainsa separate facility when physicallyconnected to another offshore facility,unless both are under one ownership.

(5) All segments of a common carrierpipeline from the point of custodytransfer to the shore, including any

pumping or booster stations, which areunder one ownership are considered asingle offshore facility.

(6) Any pipeline, which is under oneownership, between two offshore facili-ties, or between an offshore facilityand the shore, is considered a singleoffshore facility.

(7) Offshore facilities which drill for,produce, or process only natural gasare not subject to this subpart unlessthe facilities have the capacity totransport, store, or otherwise handlemore than 1,000 barrels of condensateat any one time.

N OTE : Regulations governing financialresponsiblity and certification for vessels arepromulgated by the Federal Maritime Com-mission.

135.203 Amount required.(a) Each facility that is used for drill-

ing for, producing, or processing oil, orwhich has the capacity to transport,store, transfer, or otherwise handlemore than one thousand barrels of oilat any one time must be covered byevidence of financial responsibilitysubmitted by or on behalf of the owneror operator of the facility, in theamount of $35,000,000.

(b) Evidence of financial responsi-bility established and maintained by aperson who owns or operates more thanone facility, or who has an interest inthe ownership or operation of morethan one facility, may be applied bythat person towards establishing andmaintaining the required evidence of financial responsibility for each facil-ity in which that person has an inter-est, if the evidence is available to sat-isfy liabilities arising out of incidentsinvolving those facilities.

135.204 Submission of evidence.(a) Where the offshore facility is

owned and operated solely by one per-son, that person must establish andmaintain evidence of financial respon-sibility covering the facility.

(b) Where the offshore facility isowned in its entirety by one person andoperated solely by another person, evi-dence of financial responsibility cov-ering the facility must be establishedand maintained by either the owner orthe operator, or, in consolidated form,by both the owner and operator.



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33 CFR Ch. I (7 101 Edition) 135.205

(c) Where the offshore facility isowned or operated by more than oneperson, evidence of financial responsi-bility covering the facility must be es-tablished and maintained by any one of the owners or operators, or, in consoli-dated form, by or on behalf of two ormore owners or operators.

(d) When evidence of financial re-sponsibility is established in a consoli-dated form, the proportional share of each participant must be shown. Theevidence must be accompanied by astatement authorizing the applicant toact for and in behalf of each partici-pant in submitting and maintainingthe evidence of financial responsibility.

(e) Each owner and operator of a fa-cility is subject to the penalty providedby section 312(a) of the Act if evidenceof financial responsibility is not estab-lished and maintained for that facility.

135.205 Methods of establishing.(a) Evidence of financial responsi-

bility may be established by any one,or any combination acceptable to theFund Administrator, of the followingmethods:

(1) Insurance;

(2) Guaranty;(3) Indemnity;(4) Surety bond; or(5) Qualification as self-insurer.(b) The Fund Administrator will ac-

cept alternative evidence of financialresponsibility if, in the Fund Adminis-trator s opinion, it establishes anequivalent degree of financial responsi-bility for the purposes of this subpart.

135.207 Insurance as evidence.(a) Insurance filed with the Fund Ad-

ministrator as evidence of financial re-sponsibility shall be issued by an in-surer that is acceptable to the FundAdministrator. Those insurers may in-clude domestic and foreign insurancecompanies, corporations or associa-tions of individual insurers, protectionand indemnity associations, or otherpersons acceptable to the Fund Admin-istrator.

(b) An insurer must:(1) Agree to be sued directly, within

the limits of the policy coverage, byany person for claims under the Actagainst the owner or operator; and

(2) Designate an agent in the UnitedStates for service of process.

(c) Insurance as evidence of financialresponsibility must indicate the effec-tive date in the endorsement on the ap-plication for Certificate of FinancialResponsibility, and must remain inforce until the date of termination in-dicated in the endorsement or until

(1) 30 days after mailing, by certifiedmail, to the Fund Administrator, andthe person insured, notification of in-tent to cancel; or

(2) Other evidence of financial re-sponsibility acceptable to the Fund Ad-ministrator has been established; or

(3) The facility to which the insur-ance applies ceases to be a facilityunder 135.201(b).

(d) Termination of insurance cov-erage shall not affect the liability of the insurer for an incident occurringbefore the effective date of termi-nation.

(e) Confirmation of insurance may beaccepted from an insurance broker thatis acceptable to the Fund Adminis-trator, subject to the Fund Adminis-trator s approval of the individual un-derwriters, in lieu of their signature on

an application, provided the confirma-tion:(1) States the insurance covers liabil-

ities under the Act;(2) Sets forth the limit and deduct-

ible;(3) Provides for direct action against

the individual underwriters to the ex-tent of their contracts;

(4) Names the underwriters and per-centages of the limit accepted by each;

(5) States that the underwritersagree to give prior written notice of cancellation or change to the Fund Ad-ministrator as required in paragraph(c) of this section; and

(6) States that the notice indicated in

paragraph (e)(5) of this section will notaffect the underwriter s liability for in-cidents occurring before the effectivedate of cancellation.

135.209 Guaranty as evidence.(a) Guarantors must:(1) Agree to be sued directly, within

the limits the guaranty, by any personfor claims under the Act against theowner or operator; and



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(b) Guaranties filed as evidence of fi-nancial responsibility must be accom-panied by the same proof that theGuarantor is financially responsible asthis subpart would require of the owneror operator; i.e. insurance, surety bond,self-insurance, or other acceptablemethods.

(c) A guaranty as evidence of finan-cial responsibility must indicate theeffective date in the endorsement onthe application for Certificate of Fi-nancial Responsibility, and must re-main in force until the date of termi-nation indicated in the endorsement oruntil:

(1) 30 days after mailing, by certifiedmail, to the Fund Administrator, andthe person guarantied, notification of intent to cancel; or


(3) The facility to which the guar-anty applies ceases to be a facilityunder 135.201(b).

(d) Termination of the guaranty shallnot affect the liability of the guarantor

for an incident occurring before the ef-fective date of termination.

135.210 Indemnity as evidence.

(a) An indemnitor must:(1) Agree to be sued directly, within

the limits of the contract coverage, byany person for claims under the Actagainst the owner or operator to theextent of the indemnity coverage; and


(b) Indemnity filed as evidence of fi-nancial responsibility must be accom-panied by the same proof of theindemnitor s financial responsibility asthis subpart would require of the owneror operator; i.e. insurance, surety bond,self-insurance; or other acceptablemethods.

(c) An indemnity as evidence of fi-nancial responsibility must indicatethe effective date in the endorsementon the application for Certificate of Fi-nancial Responsibility, and must re-main in force until the date of termi-nation indicated in the endorsement oruntil

(1) 30 days after mailing, by certifiedmail, to the Fund Administrator, andthe person indemnified, notification of intent to cancel; or


(3) The facility to which the indem-nity applies ceases to be a facilityunder 135.201(b).

(d) Termination of an indemnityshall not affect the liability of theindemnitor for an incident occurringbefore the effective date of termi-nation.

135.211 Surety bond as evidence.(a) Each surety bond filed with the

Fund Administrator as evidence of fi-nancial responsibility shall be issuedby a bonding company that:

(1) Is authorized to do business in theUnited States;

(2) Is licensed to do business in thestate or territory in which the bond isexecuted;

(3) Is certified by the Department of the Treasury with respect to theissuance of Federal bonds in the penalsum of the bond; and

(4) Designates an agent in the UnitedStates for service of process.

(b) The bonding company must agreeto be sued directly, within the limits of the surety bond, by any person forclaims under the Act against the owneror operator.

(c) A surety bond as evidence of fi-nancial responsibility must indicatethe effective date in the endorsementon the application for Certificate of Fi-nancial Responsibility, and must re-main in force until the date of termi-nation indicated in the endorsement oruntil:

(1) 30 days after mailing, by certifiedmail, to the Fund Administrator, andthe person bonded, notification of in-tent to cancel; or


(3) The facility to which the suretybond applies ceases to be a facilityunder 135.201(b).

(d) Termination of the surety bondshall not affect the liability of the sur-ety for an incident occurring before theeffective date of termination.



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33 CFR Ch. I (7 101 Edition) 135.213

135.213 Qualification as self-insurer.

(a) Qualification for self insurancemust be supported by a copy of theself-insurer s current balance sheet, in-come statement, and statement of changes in financial position that arecertified by an independent CertifiedPublic Accountant and must be accom-panied by either:

(1) An additional statement con-firming that the self-insurer s currentU.S. assets, including those of consoli-dated subsidiaries held in the U.S., not

including pledged assets or stock notpublicly traded, exceed the currentU.S. liabilities, and the self-insurersnet worth exceeds the amount of therequested self-insurance; or

(2) A statement, based on an analysisof the self-insurer s financial position,which shows that sufficient assets orcash flow, other than which might bedamaged as a result of a pollution inci-dent, are available which may be liq-uidated to provide the funds necessaryto retire a claim for the amount of theself-insurance without placing the self-insurer in an insolvent position.

(b) The statements required by para-graphs (a) (1) and (2) of this section

must be prepared and submitted by theinvolved Certified Public Accountantwhen the required financial statementsare prepared in consolidated form andthe liability represents less than thefull financial backing of the consoli-dated entity, otherwise they may beprepared and submitted by the Treas-urer or equivalent official.

(c) If the self-insurer files a Securi-ties and Exchange Commission Form10 K report, a copy of the self-insurer smost recent 10 K report must be filedwith the Fund Administrator within120 days after the end of the fiscal yearto which it relates, in addition to filingthe most recent 10 K report with theinitial application.

(d) Each self-insurer must file annu-ally with the Fund Administrator, cop-ies of documents required under para-graph (a) of this section, within 120days after the close of the self-insurer sfiscal accounting period. If a self-in-surer files a 10 K report with the FundAdministrator under paragraph (c) of this section which contains some of thefinancial statements required in para-

graph (a), a separate filing of those spe-cific statements need not be made.

135.215 Certification.

(a) Applicants shall:(1) If the facility is in existence be-

fore September 17, 1979, apply for a Cer-tificate of Financial Responsibility be-fore September 17, 1979.

(2) If the offshore facility is not in ex-istence on September 17, 1979, apply fora Certificate of Financial Responsi-bility at least 45 days before placing

the offshore facility into operation orcoverage becomes effective.

(3) If submitting an application to in-clude an additional facility under pre-viously established evidence of finan-cial responsibility, apply for a Certifi-cate of Financial Responsibility asearly as possible before the anticipateddate of desired coverage.

(b) Each application for a Certificateof Financial Responsibility must bemade on a Coast Guard prescribed Ap-plication for Certificate of FinancialResponsibility form, available from theFund Administrator or any CoastGuard District Office. This form must

be submitted for each facility; how-ever, if evidence of financial responsi-bility has been previously establishedin an amount sufficient to meet 135.203 (a), no additional evidence needbe submitted with the application.

(c) Each application form submittedunder this section must be signed bythe applicant. A written statementproving authority to sign must also besubmitted where the signer is not dis-closed as an individual (sole proprietor)applicant, a partner in a partnershipapplicant, or a director or other officerof a corporate applicant.

(d) Financial data or other informa-

tion submitted under this section thatis proprietary in nature, or constitutesa trade secret, must be clearly des-ignated as such to insure confidentialtreatment by the Fund Administrator,under 5 U.S.C. 552, the Freedom of In-formation Act, which provides for ex-emption from disclosure of trade secretdata.

(e) If any of the information sub-mitted for certification is determined



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by the Fund Administrator to be insuf-ficient the Fund Administrator may re-quire additional information beforefinal consideration of the application.

(f) Certificates, as issued, are to beconsidered property of the U.S. Govern-ment, are not to be altered in any man-ner, and must be surrendered on de-mand when revoked in accordance with 135.223 of this subpart.

(g) Applicants shall obtain a Certifi-cate of Financial Responsibility foreach facility.

135.219 Notification of changes af-fecting certification.(a) Each owner, operator, or guar-

antor of an offshore facility shall with-in ten days notify the Fund Adminis-trator in writing when any changesoccur which prevent the owner, oper-ator, or guarantor, from meeting theobligations for which a Certificate of Financial Responsibility has beenissued.

(b) Based on notice of a change in fi-nancial capability under paragraph (a)of this section, the Fund Administratormay revoke a Certificate of FinancialResponsibility.

135.221 Reapplication for certifi-cation.(a) If a Certificate of Financial Re-

sponsibility becomes invalid for anyreason, an application for a new certifi-cate must be immediately submitted tothe Fund Administrator in accordancewith 135.204.

135.223 Certificates, denial or revoca-tion.

(a) A certificate may be denied or re-voked for any of the following reasons:

(1) Making any willfully false state-ment to the Fund Administrator inconnection with establishing or main-taining evidence of financial responsi-bility.

(2) Failure of an applicant orcertificant to establish or maintainevidence of financial responsibility asrequired by the regulations in this sub-part.

(3) Failure to comply with or respondto inquiries, regulations, or orders of the Fund Administrator concerning es-tablishing or maintaining evidence of financial responsibility.

(4) Failure to timely file the reportsor documents required by 135.213 (c)and (d).

(5) Cancellation or termination of any insurance policy, surety bond, in-demnity, or guaranty issued under thissubpart or modification thereto whichreduces the financial capacity of theapplicant or certificant to meet the re-quirements of this subpart, unless sub-stitute evidence of financial responsi-bility has been submitted to and ac-cepted by the Fund Administrator.

(b) Denial or revocation of a certifi-cate shall be immediate and withoutprior notice in a case where the appli-cant or certificant:

(1) Is no longer the owner or operatorof the offshore facility in question;

(2) Fails to furnish acceptable evi-dence of financial responsibility in sup-port of an application; or

(3) Permits the cancellation or termi-nation of the insurance policy, suretybond, indemnity, or guaranty uponwhich the continued validity of thecertificate is based.

(c) In any other case, before the de-nial or revocation of a certificate, theFund Administrator advises the appli-

cant or certificant, in writing, of theintention to deny or revoke the certifi-cate, and shall state the reason there-for.

(d) If the reason for an intended rev-ocation is failure to file the reports ordocuments required by 135.213 (c) and(d) the revocation shall be effective 10days after the date of receipt of the no-tice of intention to revoke, unless thecertificant shall, before revocation,submit the required material or dem-onstrate that the required materialwas timely filed.

(e) If the intended denial or revoca-tion is based upon one of the reasons inparagraph (a)(1) or (a)(3) of this sec-tion, the applicant or certificant mayrequest, in writing, a hearing to showthat the applicant or certificant is incompliance with this subpart. If the ap-plicant or certificant fails to file atimely request for a hearing, the denialor revocation is effective 10 days afterreceipt of the notice.

(f) If a request for a hearing underparagraph (e) of this section is receivedby the Fund Administrator within 10



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days after the date of receipt of a no-tice of intention to deny or revoke, theFund Administrator grants a hearingand notifies the requesting party of thedate, time, and location of the hearing.If a requesting party fails to enter anappearance at the scheduled hearing,or in lieu thereof fails to submit writ-ten evidence for the consideration of the hearing official, denial or revoca-tion is effective as of the scheduleddate and time of the hearing, unless anextension of time is granted by theFund Administrator for good causeshown.

(g) Hearings under this section areinformal and are conducted by an offi-cial designated by the Fund Adminis-trator. The official conducting thehearing considers all relevant materialsubmitted and makes recommenda-tions to the Fund Administrator.

(h) The Fund Administrator s deci-sion is final agency action.

Subpart D Notification ofPollution Incidents

135.303 Definitions.As used in this subpart:

Occurrences which pose an imminentthreat of oil pollution means those inci-dents that are likely to result in a dis-charge of oil and include, but are notlimited to: vessel collisions, groundingor stranding; structural failure in atank, pipeline or other oil handlingsystem; fire, explosion or other eventswhich may cause structural damage toa vessel or offshore facility.

[CGD 77 055, 44 FR 16868, Mar. 19, 1979, asamended by CGD 91 035, 57 FR 36316, Aug. 12,1992]

135.305 Notification procedures.(a) The person in charge of a vessel or

offshore facility that is involved in anincident, including occurrences whichpose an imminent threat of oil pollu-tion shall, as soon as that person hasknowledge of the incident, imme-diately notify by telephone, radio tele-communication or a similar rapidmeans of communication, in the fol-lowing order of preference:

(1) (Within or offshore of the 48 con-tiguous States only) The Duty Officer,National Response Center, U.S. Coast

Guard, 2100 Second Street, SW., Wash-ington, DC 20593 0001, toll free tele-phone number 800 424 8802; or

(2) The commanding officer or super-visor of any Coast Guard Marine SafetyOffice, Captain of the Port Office, Ma-rine Safety Detachment or Port SafetyDetachment in the vicinity of the inci-dent; or

(3) The commanding officer or officerin charge of any other Coast Guardunit in the vicinity of the incident; or

(4) The Commander of any CoastGuard District.

(b) Notification given in accordancewith this subpart constitutes fulfill-ment of the requirements of Subpart Cof 33 CFR Part 153 concerning Notice of the Discharge of Oil.

[CGD 77 055, 44 FR 16868, Mar. 19, 1979, asamended by USCG 1998 3799, 63 FR 35530,June 30, 1998]

135.307 Notification contents.(a) In each notification provided

under 135.305, the person in charge of the vessel or offshore facility involvedin the incident shall provide his or hername and telephone number, or radiocall sign, and, to the extent known,the:

(1) Location, date and time of the in-cident;

(2) Quantity of oil involved;(3) Cause of the incident;(4) Name or other identification of

the vessel or offshore facility involved;(5) Size and color of any slick or

sheen and the direction of movement;(6) Observed on scene weather condi-

tions, including wind speed and direc-tion, height and direction of seas, andany tidal or current influence present;

(7) Actions taken or contemplated tosecure the source or contain and re-move or otherwise control the dis-charged oil;

(8) Extent of any injuries or otherdamages incurred as a result of the in-cident;

(9) Observed damage to living naturalresources; and

(10) Any other information deemedrelevant by the reporting party or re-quested by the person receiving the no-tification.

(b) The person giving notification of an incident must not delay notificationto gather all required information and



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Coast Guard, DOT Pt. 136

must provide any information not im-mediately available when it becomesknown.

Subpart E Access, Denial, andDetention

135.401 Access to vessel, Certificatesof Financial Responsibility.

(a) The owner, operator, master oragent of any vessel subject to the Actshall, upon request by any Coast Guardofficer or petty officer, permit access

to the vessel and produce for examina-tion the Certificate of Financial Re-sponsibility.

135.403 Sanctions for failure toproduce vessel Certificates of Fi-nancial Responsibility.

(a) The Captain of the Port issues de-nial or detention orders to the owner,operator, agent, or master of any ves-sel that cannot show upon request avalid Certificate of Financial Responsi-bility issued under the Act.

(b) A denial order forbids entry of any vessel subject to the Act to anyport or place in the United States or tothe navigable waters of the United

States.(c) A detention order detains any ves-sel subject to the Act at the port orplace in the United States from whichit is about to depart for any other portor place in the United States.

(d) The Captain of the Port termi-nates a denial or detention order whenthe owner, operator, agent, or masterof a vessel furnishes adequate evidencethat the certification of financial re-sponsibility requirements under theAct have been met.

135.405 Appeal provisions.(a) The owner, operator, agent or

master of a vessel issued a denial or de-tention order under this subpart maypetition the District Commander inany manner to review that order.

(b) Upon completion of review, theDistrict Commander affirms, setsaside, or modifies the order.

(c) Unless otherwise determined bythe District Commander a denial or de-tention order remains in effect pendingthe outcome of any petition or appealof that order.

(d) The District Commander acts onall petitions or appeals within 10 daysof receipt.

(e) The decision of the District Com-mander is final agency action.

PART 136 OIL SPILL LIABILITY TRUSTFUND; CLAIMS PROCEDURES;DESIGNATION OF SOURCE; ANDADVERTISEMENT

Subpart A General

Sec.136.1 Purpose and applicability.136.3 Information.136.5 Definitions.136.7 Foreign claimants.136.9 Falsification of claims.

Subpart B General Procedure

136.101 Time limitations on claims.136.103 Order of presentment.136.105 General requirements for a claim.136.107 Subrogated claims.136.109 Removal costs and multiple items of

damages.136.111 Insurance.136.113 Other compensation.136.115 Settlement and notice to claimant.

Subpart C Procedures for Particular

ClaimsR EMOVAL C OSTS

136.201 Authorized claimants.136.203 Proof.136.205 Compensation allowable.

N ATURAL R ESOURCES


R EAL OR P ERSONAL P ROPERTY


S UBSISTENCE U SE


G OVERNMENT R EVENUES


P ROFITS AND E ARNING C APACITY




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33 CFR Ch. I (7 101 Edition) 136.1

G OVERNMENT P UBLIC S ERVICES


Subpart D Designation of Source andAdvertisement

G ENERAL

136.301 Purpose.136.303 Definitions.

D ESIGNATION OF S OURCE

136.305 Notice of designation.

136.307 Denial of designation.A DVERTISEMENT

136.309 Advertisement determinations.136.311 Types of advertisement.136.313 Content of advertisement.

A UTHORITY : 33 U.S.C. 2713, 2714; E.O. 12777,3 CFR, 1991 Comp., p. 351; 49 CFR 1.46.

S OURCE : CGD 91 035, 57 FR 36316, Aug. 12,1992, unless otherwise noted.

Subpart A General 136.1 Purpose and applicability.

(a) This part prescribes regulationsfor

(1) Presentation, filing, processing,settlement, and adjudication of claimsauthorized to be presented to the OilSpill Liability Trust Fund (the Fund)under section 1013 of the Oil PollutionAct of 1990 (the Act) (33 U.S.C. 2713) forcertain uncompensated removal costsor uncompensated damages resultingfrom the discharge, or substantialthreat of discharge, of oil from a vesselor facility into or upon the navigablewaters, adjoining shorelines, or the ex-clusive economic zone;

(2) Designation of the source of theincident, notification to the respon-sible party of the designation, and ad-vertisement of the designation andclaims procedures; and

(3) Other related matters.(b) This part applies to claims result-

ing from incidents occurring after Au-gust 18, 1990.

(c) Nothing in this part (1) Preempts the authority of any

State or political subdivision thereof from imposing any additional liabilityor requirements with respect to

(i) The discharge of oil or other pollu-tion by oil within such State; or

(ii) Any removal activities in connec-tion with such a discharge; or

(2) Affects or modifies in any way theobligations or liabilities of any personunder the Solid Waste Disposal Act (42U.S.C. 6901 et seq. ) or State law, includ-ing common law; or

(3) Affects the authority of anyState

(i) To establish, or to continue in ef-fect, a fund any purpose of which is topay for costs or damages arising out of,or directly resulting from, oil pollutionor the substantial threat of oil pollu-tion; or

(ii) To require any person to con-tribute to such a fund; or

(4) Affects the authority of theUnited States or any State or politicalsubdivision thereof to impose addi-tional liability or additional require-ments relating to a discharge, or sub-stantial threat of a discharge, of oil.

136.3 Information.Anyone desiring to file a claim

against the Fund may obtain generalinformation on the procedure for filinga claim from the Director, NationalPollution Funds Center, suite 1000, 4200

Wilson Boulevard, Arlington, Virginia22203 1804, (703) 235 4756.

136.5 Definitions(a) As used in this part, the following

terms have the same meaning as setforth in sections 1001 and 1007(c) of theAct (33 U.S.C. 2701 and 2707(c)): Claim,claimant, damages, discharge, exclusiveeconomic zone, facility, foreign claimant,

foreign offshore unit, Fund, guarantor,incident, National Contingency Plan, nat-ural resources, navigable waters, offshore

facility, oil, onshore facility, owner or op-erator, person, removal costs, responsible

party, State, United States, and vessel.(b) As used in this part Act means title I of the Oil Pollution

Act of 1990 (Pub. L. 101 380; 33 U.S.C.2701 through 2719).

Director, NPFC, means the person incharge of the U.S. Coast Guard Na-tional Pollution Funds Center or thatperson s authorized representative.

FOSC means the Federal On-SceneCoordinator designated under the Na-tional Contingency Plan or that per-son s authorized representative.



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NPFC means the U.S. Coast GuardNational Pollution Funds Center, suite1000, 4200 Wilson Boulevard, Arlington,Virginia 22203 1804.

136.7 Foreign claimants.In addition to other applicable limi-

tations on presenting claims to theFund, claims by foreign claimants torecover removal costs or damages maybe presented only when the require-ments of section 1007 of the Act (33U.S.C. 2707) are met.

136.9 Falsification of claims.Persons submitting false claims or

making false statements in connectionwith claims under this part may besubject to prosecution under Federallaw, including but not limited to 18U.S.C. 287 and 1001. In addition, personssubmitting written documentation insupport of claims under this part whichthey know, or should know, is false oromits a material fact may be subject toa civil penalty for each claim. If anypayment is made on the claim, theclaimant may also be subject to an as-sessment of up to twice the amountclaimed. These civil sanctions may beimposed under the Program FraudCivil Remedies Act, 31 U.S.C. 3801 3812,as implemented in 49 CFR part 31.

[CGD 91 035, 57 FR 36316, Aug. 12, 1992, asamended by CGD 96 052, 62 FR 16703, Apr. 8,1997]

Subpart B General Procedure 136.101 Time limitations on claims.

(a) Except as provided under section1012(h)(3) of the Act (33 U.S.C.2712(h)(3)) (minors and incompetents),the Fund will consider a claim only if presented in writing to the Director,NPFC, within the following time lim-its:

(1) For damages, within three yearsafter

(i) The date on which the injury andits connection with the incident inquestion were reasonably discoverablewith the exercise of due care.

(ii) In the case of natural resourcesdamages under section 1002(b)(2)(A) of the Act (33 U.S.C. 2702(b)(2)(A)), thedate under paragraph (a)(1)(i) of thissection, or within three years from the

date of completion of the natural re-sources damage assessment under sec-tion 1006(e) of the Act (33 U.S.C.2706(e)), whichever is later.

(2) For removal costs, within sixyears after the date of completion of all removal actions for the incident. Asused in this paragraph, date of com-pletion of all removal actions is de-fined as the actual date of completionof all removal actions for the incidentor the date the FOSC determines thatthe removal actions which form thebasis for the costs being claimed arecompleted, whichever is earlier.

(b) Unless the Director, NPFC, di-rects in writing that the claim be sub-mitted elsewhere, a claim is deemedpresented on the date the claim is ac-tually received at the National Pollu-tion Funds Center, suite 1000, 4200 Wil-son Boulevard, Arlington, Virginia22203 1804. If the Director, NPFC, di-rects that the claim be presented else-where, the claim is deemed presentedon the date the claim is actually re-ceived at the address in the directive.

[CGD 91 035, 57 FR 36316, Aug. 12, 1992; 57 FR41104, Sept. 9, 1992]

136.103 Order of presentment.(a) Except as provided in paragraph

(b) of this section, all claims for re-moval costs or damages must be pre-sented first to the responsible party orguarantor of the source designatedunder 136.305.

(b) Claims for removal costs or dam-ages may be presented first to theFund only

(1) By any claimant, if the Director,NPFC, has advertised, or otherwise no-tified claimants in writing, in accord-ance with 136.309(e);

(2) By a responsible party who mayassert a claim under section 1008 of the

Act (33 U.S.C. 2708);(3) By the Governor of a State for re-

moval costs incurred by that State; or(4) By a United States claimant in a

case where a foreign offshore unit hasdischarged oil causing damage forwhich the Fund is liable under section1012(a) of the Act (33 U.S.C. 2712(a)).

(c) If a claim is presented in accord-ance with paragraph (a) of this sectionand



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33 CFR Ch. I (7 101 Edition) 136.105

(1) Each person to whom the claim ispresented denies all liability for theclaim; or

(2) The claim is not settled by anyperson by payment within 90 days afterthe date upon which (A) the claim waspresented, or (B) advertising was begunpursuant to 136.309(d), whichever islater, the claimant may elect to com-mence an action in court against theresponsible party or guarantor or topresent the claim to the Fund.

(d) No claim of a person against theFund will be approved or certified forpayment during the pendency of an ac-tion by the person in court to recovercosts which are the subject of theclaim.

[CGD 91 035, 57 FR 36316, Aug. 12, 1992; 57 FR41104, Sept. 9, 1992]

136.105 General requirements for aclaim.

(a) The claimant bears the burden of providing all evidence, information,and documentation deemed necessaryby the Director, NPFC, to support theclaim.

(b) Each claim must be in writing fora sum certain for compensation foreach category of uncompensated dam-ages or removal costs (as described inSubpart C of this part) resulting froman incident. If at any time during thependency of a claim against the Fundthe claimant receives any compensa-tion for the claimed amounts, theclaimant shall immediately amend theclaim.

(c) Each claim must be signed in inkby the claimant certifying to the bestof the claimant s knowledge and belief that the claim accurately reflects allmaterial facts.

(d) In addition to the other require-ments of this section, any claim pre-sented by a legal representative of theclaimant must also be signed by thelegal representative and

(1) Be presented in the name of theclaimant;

(2) Show the title or legal capacity of the representative; and

(3) Provide proof of authority to actfor the claimant.

(e) Each claim must include at leastthe following, as applicable:

(1) The full name, street and mailingaddresses of residence and business,

and telephone numbers of the claim-ant.

(2) The date, time, and place of theincident giving rise to the claim.

(3) The identity of the vessel, facil-ity, or other entity causing or sus-pected to have caused the removalcosts or damages claimed and the basisfor such identity or belief.

(4) A general description of the na-ture and extent of the impact of the in-cident, the costs associated with re-moval actions, and damages claimed,

by category as delineated in Subpart Cof this part, including, for any prop-erty, equipment, or similar item dam-aged, the full name, street and mailingaddress, and telephone number of theactual owner, if other than the claim-ant.

(5) An explanation of how and whenthe removal costs or damages werecaused by, or resulted from, an inci-dent.

(6) Evidence to support the claim.(7) A description of the actions taken

by the claimant, or other person on theclaimant s behalf, to avoid or minimizeremoval costs or damages claimed.

(8) The reasonable costs incurred by

the claimant in assessing the damagesclaimed. This includes the reasonablecosts of estimating the damagesclaimed, but not attorney s fees orother administrative costs associatedwith preparation of the claim.

(9) To the extent known or reason-ably identifiable by the claimant, thefull name, street and mailing address,and telephone number of each witnessto the incident, to the discharge, or tothe removal costs or damages claimed,along with a brief description of thatperson s knowledge.

(10) A copy of written communica-tions and the substance of verbal com-munications, if any, between theclaimant and the responsible party orguarantor of the source designatedunder 136.305 and a statement indi-cating that the claim was presented tothe responsible party or guarantor, thedate it was presented, that it was de-nied or remains not settled and, if known, the reason why it was denied orremains not settled.

(11) If the claimant has insurancewhich may cover the removal costs or



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damages claimed, the information re-quired under 136.111.

(12) A statement by the claimantthat no action has been commenced incourt against the responsible party orguarantor of the source designatedunder 136.305 or, if an action has beencommenced, a statement identifyingthe claimant s attorney and the attor-ney s address and phone number, thecivil action number, and the court inwhich the action is pending.

(13) In the discretion of the Director,NPFC, any other information deemedrelevant and necessary to properlyprocess the claim for payment.

136.107 Subrogated claims.(a) The claims of subrogor (e.g., in-

sured) and subrogee (e.g., insurer) forremoval costs and damages arising outof the same incident should be pre-sented together and must be signed byall claimants.

(b) A fully subrogated claim is pay-able only to the subrogee.

(c) A subrogee must support a claimin the same manner as any otherclaimant.

136.109 Removal costs and multiple

items of damages.(a) A claimant must specify all of the

claimant s known removal costs ordamages arising out of a single inci-dent when submitting a claim.

(b) Removal costs and each separatecategory of damages (as described insubpart C of this part) must be sepa-rately listed with a sum certain attrib-uted to each type and category listed.

(c) At the sole discretion of the Di-rector, NPFC, removal costs and eachseparate category of damages may betreated separately for settlement pur-poses.

136.111 Insurance.(a) A claimant shall provide the fol-

lowing information concerning any in-surance which may cover the removalcosts or damages for which compensa-tion is claimed:

(1) The name and address of each in-surer.

(2) The kind and amount of coverage.(3) The policy number.(4) Whether a claim has been or will

be presented to an insurer and, if so,

the amount of the claim and the nameof the insurer.

(5) Whether any insurer has paid theclaim in full or in part or has indicatedwhether or not payment will be made.

(b) If requested by the Director,NPFC, the claimant shall provide acopy of the following material:

(1) All insurance policies or indem-nification agreements.

(2) All written communications, anda summary of all oral communications,with any insurer or indemnifier.

(c) A claimant shall advise the Direc-tor, NPFC, of any changes in the infor-mation provided under this section.

136.113 Other compensation.

A claimant must include an account-ing, including the source and value, of all other compensation received, ap-plied for, or potentially available as aconsequence of the incident out of which the claim arises including, butnot limited to, monetary payments,goods or services, or other benefits.

136.115 Settlement and notice toclaimant.

(a) Payment in full, or acceptance bythe claimant of an offer of settlementby the Fund, is final and conclusive forall purposes and, upon payment, con-stitutes a release of the Fund for theclaim. In addition, acceptance of anycompensation from the Fund precludesthe claimant from filing any subse-quent action against any person to re-cover costs or damages which are thesubject of the compensated claim. Ac-ceptance of any compensation also con-stitutes an agreement by the claimantto assign to the Fund any rights,claims, and causes of action the claim-ant has against any person for thecosts and damages which are the sub-ject of the compensated claims and tocooperate reasonably with the Fund inany claim or action by the Fundagainst any person to recover theamounts paid by the Fund. The co-operation shall include, but is not lim-ited to, immediately reimbursing theFund for any compensation receivedfrom any other source for the samecosts and damages and providing anydocumentation, evidence, testimony,and other support, as may be necessary



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33 CFR Ch. I (7 101 Edition) 136.201

for the Fund to recover from any per-son.

(b) Claimant s failure to accept anoffer of settlement within 60 days afterthe date the offer was mailed to theclaimant automatically voids the offer.The Director, NPFC, reserves the rightto revoke an offer at any time.

(c) A claimant will be notified inwriting sent by certified or registeredmail whenever a claim against theFund is denied. The failure of the Di-rector, NPFC, to make final dispositionof a claim within six months after it is

filed shall, at the option of the claim-ant any time thereafter, be deemed afinal denial of the claim.

(d) The Director, NPFC, upon writtenrequest of the claimant or of a personduly authorized to act on the claim-ant s behalf, reconsiders any claim de-nied. The request for reconsiderationmust be in writing and include the fac-tual or legal grounds for the relief re-quested, providing any additional sup-port for the claim. The request must bereceived by the Director, NPFC, within60 days after the date the denial wasmailed to the claimant or within 30days after receipt of the denial by theclaimant, whichever date is earlier. Re-

consideration may only be requestedonce for each claim denied. The Direc-tor, NPFC will provide the claimantseeking reconsideration with writtennotification of the decision within 90days after receipt of the request for re-consideration. This written decision isfinal. The failure of the Director,NPFC, to make final disposition of areconsideration within 90 days after itis received shall, at the option of theclaimant any time thereafter, bedeemed a final denial of the reconsider-ation.

Subpart C Procedures forParticular Claims

R EMOVAL C OSTS

136.201 Authorized claimants.A claim for removal costs may be

presented by any claimant.

136.203 Proof.In addition to the requirements of

Subparts A and B of this part, a claim-ant must establish

(a) That the actions taken were nec-essary to prevent, minimize, or miti-gate the effects of the incident;

(b) That the removal costs were in-curred as a result of these actions;

(c) That the actions taken were de-termined by the FOSC to be consistentwith the National Contingency Plan orwere directed by the FOSC.

136.205 Compensation allowable.

The amount of compensation allow-able is the total of uncompensated rea-

sonable removal costs of actions takenthat were determined by the FOSC tobe consistent with the National Con-tingency Plan or were directed by theFOSC. Except in exceptional cir-cumstances, removal activities forwhich costs are being claimed musthave been coordinated with the FOSC.

N ATURAL R ESOURCES

136.207 Authorized claimants.

(a) Claims for uncompensated naturalresource damages may be presented byan appropriate natural resources trust-ee. However, in order to facilitate theprocessing of these claims with respectto a single incident where multipletrustees are involved and to preventdouble recovery, the affected trusteesshould select a lead administrativetrustee who will present consolidatedclaims on behalf of the trustees.

(b) A trustee may present a claim forthe reasonable cost of assessing nat-ural resources damages separatelyfrom a claim for the cost of developingand implementing plans for the res-toration, rehabilitation, replacement,or acquisition of the equivalent of thenatural resources damaged.

136.209 Proof.

In addition to the requirements of subparts A and B of this part, a trusteemust do the following:

(a) Submit the assessment and res-toration plans which form the basis of the claim.

(b) Provide documented costs andcost estimates for the claim. Final costestimates for conducting damage as-sessments or implementing a restora-tion plan may form the basis for a



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claim against the Fund for an uncom-pensated natural resources damageclaim.

(c) Identify all trustees who may bepotential claimants for the same nat-ural resources damaged.

(d) Certify the accuracy and integrityof any claim submitted to the Fund,and certify that any actions taken orproposed were or will be conducted inaccordance with the Act and consistentwith all applicable laws and regula-tions.

(e) Certify whether the assessmentwas conducted in accordance with ap-plicable provisions of the natural re-sources damage assessment regulationspromulgated under section 1006(e)(1) of the Act (33 U.S.C. 2706(e)(1)). Identifyany other or additional damage assess-ment regulations or methodology uti-lized.

(f) Certify that, to the best of thetrustee s knowledge and belief, noother trustee has the right to present aclaim for the same natural resourcesdamages and that payment of any sub-part of the claim presented would notconstitute a double recovery for thesame natural resources damages.

136.211 Compensation allowable.(a) The amount of compensation al-

lowable is the reasonable cost of as-sessing damages, and the cost of restor-ing, rehabilitating, replacing, or ac-quiring the equivalent of the damagednatural resources.

(b) In addition to any other provisionof law respecting the use of sums re-covered for natural resources damages,trustees shall reimburse the Fund forany amounts received from the Fund inexcess of that amount required to ac-complish the activities for which theclaim was paid.

R EAL OR P ERSONAL P ROPERTY

136.213 Authorized claimants.(a) A claim for injury to, or economic

losses resulting from the destructionof, real or personal property may bepresented only by a claimant eitherowning or leasing the property.

(b) Any claim for loss of profits orimpairment of earning capacity due toinjury to, destruction of, or loss of realor personal property must be included

as subpart of the claim under this sec-tion and must include the proof re-quired under 136.233.

136.215 Proof.(a) In addition to the requirements of

subparts A and B of this part, a claim-ant must establish

(1) An ownership or leasehold inter-est in the property;

(2) That the property was injured ordestroyed;

(3) The cost of repair or replacement;

and(4) The value of the property both be-fore and after injury occurred.

(b) In addition, for each claim foreconomic loss resulting from destruc-tion of real or personal property, theclaimant must establish

(1) That the property was not avail-able for use and, if it had been, thevalue of that use;

(2) Whether or not substitute prop-erty was available and, if used, thecosts thereof; and

(3) That the economic loss claimedwas incurred as the result of the injuryto or destruction of the property.


lowable for damaged property is thelesser of

(1) Actual or estimated net cost of re-pairs necessary to restore the propertyto substantially the same conditionwhich existed immediately before thedamage;

(2) The difference between value of the property before and after the dam-age; or

(3) The replacement value.(b) Compensation for economic loss

resulting from the destruction of realor personal property may be allowed inan amount equal to the reasonablecosts actually incurred for use of sub-stitute commercial property or, if sub-stitute commercial property was notreasonably available, in an amountequal to the net economic loss whichresulted from not having use of theproperty. When substitute commercialproperty was reasonably available, butnot used, allowable compensation forloss of use is limited to the cost of thesubstitute commercial property, or the



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33 CFR Ch. I (7 101 Edition) 136.219

property lost, whichever is less. Com-pensation for loss of use of noncommer-cial property is not allowable.

(c) Compensation for a claim for lossof profits or impairment of earning ca-pacity under 136.213(b) is limited tothat allowable under 136.235.

S UBSISTENCE U SE

136.219 Authorized claimants.(a) A claim for loss of subsistence use

of natural resources may be presentedonly by a claimant who actually uses,for subsistence, the natural resourceswhich have been injured, destroyed, orlost, without regard to the ownershipor management of the resources.

(b) A claim for loss of profits or im-pairment of earning capacity due toloss of subsistence use of natural re-sources must be included as part of theclaim under this section and must in-clude the proof required under 136.233.


subparts A and B of this part, a claim-ant must provide

(a) The identification of each specific

natural resource for which compensa-tion for loss of subsistence use isclaimed;

(b) A description of the actual sub-sistence use made of each specific nat-ural resource by the claimant;

(c) A description of how and to whatextent the claimant s subsistence usewas affected by the injury to or loss of each specific natural resource;

(d) A description of each effort madeby the claimant to mitigate the claim-ant s loss of subsistence use; and

(e) A description of each alternativesource or means of subsistence avail-able to the claimant during the periodof time for which loss of subsistence is

claimed, and any compensation avail-able to the claimant for loss of subsist-ence.


lowable is the reasonable replacementcost of the subsistence loss suffered bythe claimant if, during the period of time for which the loss of subsistenceis claimed, there was no alternative

source or means of subsistence avail-able.

(b) The amount of compensation al-lowable under paragraph (a) of this sec-tion must be reduced by

(1) All compensation made availableto the claimant to compensate for sub-sistence loss;

(2) All income which was derived byutilizing the time which otherwisewould have been used to obtain naturalresources for subsistence use; and

(3) Overheads or other normal ex-

penses of subsistence use not incurredas a result of the incident.

(c) Compensation for a claim for lossof profits or impairment of earning ca-pacity under 136.219(b) is limited tothat allowable under 136.235.

G OVERNMENT R EVENUES


A claim for net loss of revenue due tothe injury, destruction, or loss of realproperty, personal property, or naturalresources may be presented only by anappropriate claimant sustaining theloss. As used in this section and

136.277, revenue means taxes, royal-ties, rents, fees, and net profit shares.

136.227 Proof.

In addition to the requirements of Subparts A and B, a claimant must es-tablish

(a) The identification and descriptionof the economic loss for which com-pensation is claimed, including the ap-plicable authority, property affected,method of assessment, rate, and meth-od and dates of collection;

(b) That the loss of revenue was dueto the injury to, destruction of, or lossof real or personal property or natural

resources;(c) The total assessment or revenuecollected for comparable revenue peri-ods; and

(d) The net loss of revenue.


The amount of compensation allow-able is the total net revenue actuallylost.



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P ROFITS AND E ARNING C APACITY

136.231 Authorized claimants.(a) A claim for loss of profits or im-

pairment of earning capacity due tothe injury to, destruction of, or loss of real or personal property or natural re-sources may be presented by a claim-ant sustaining the loss or impairment.The claimant need not be the owner of the damaged property or resources torecover for lost profits or income.

(b) A claim for loss of profits or im-pairment of earning capacity that alsoinvolves a claim for injury to, or eco-nomic losses resulting from destruc-tion of, real or personal property mustbe claimed under 136.213.

(c) A claim for loss of profits or im-pairment of earning capacity that alsoinvolves a claim for loss of subsistenceuse of natural resources must beclaimed under 136.219.


subparts A and B of this part, a claim-ant must establish the following:

(a) That real or personal property ornatural resources have been injured,destroyed, or lost.

(b) That the claimant s income wasreduced as a consequence of injury to,destruction of, or loss of the propertyor natural resources, and the amountof that reduction.

(c) The amount of the claimant sprofits or earnings in comparable peri-ods and during the period when theclaimed loss or impairment was suf-fered, as established by income tax re-turns, financial statements, and simi-lar documents. In addition, compara-tive figures for profits or earnings forthe same or similar activities outsideof the area affected by the incidentalso must be established.

(d) Whether alternative employmentor business was available and under-taken and, if so, the amount of incomereceived. All income that a claimantreceived as a result of the incidentmust be clearly indicated and anysaved overhead and other normal ex-penses not incurred as a result of theincident must be established.


The amount of compensation allow-able is limited to the actual net reduc-tion or loss of earnings or profits suf-fered. Calculations for net reductionsor losses must clearly reflect adjust-ments for

(a) All income resulting from the in-cident;

(b) All income from alternative em-ployment or business undertaken;

(c) Potential income from alternativeemployment or business not under-taken, but reasonably available;

(d) Any saved overhead or normal ex-penses not incurred as a result of theincident; and

(e) State, local, and Federal taxes.

G OVERNMENT P UBLIC S ERVICES


A claim for net costs of providing in-creased or additional public servicesduring or after removal activities, in-cluding protection from fire, safety, orhealth hazards, caused by a dischargeof oil may be presented only by a Stateor a political subdivision of a State in-curring the costs.

136.239 Proof.

In addition to the requirements of subparts A and B of this part, a claim-ant must establish

(a) The nature of the specific publicservices provided and the need forthose services;

(b) That the services occurred duringor after removal activities;

(c) That the services were provided asa result of a discharge of oil and wouldnot otherwise have been provided; and

(d) The net cost for the services andthe methods used to compute thosecosts.


The amount of compensation allow-able is the net cost of the increased oradditional service provided by theState or political subdivision.



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33 CFR Ch. I (7 101 Edition) 136.301

Subpart D Designation of Sourceand Advertisement

G ENERAL

136.301 Purpose.

This subpart prescribes the require-ments concerning designation of thesource or sources of the discharge orthreat of discharge and advertisementof these designations, including theprocedures by which claims may bepresented to the responsible party or

guarantor. 136.303 Definitions.

As used in this subpart Advertisement means the dissemina-

tion of information, including but notlimited to paid advertisements, thatare reasonably calculated to advise thepublic how to present a claim.

Designated source means a source des-ignated under 136.305.

D ESIGNATION OF S OURCE

136.305 Notice of designation.

(a) When information of an incidentis received, the source or sources of thedischarge or threat are designated,where possible and appropriate. If thedesignated source is a vessel or facil-ity, the responsible party and the guar-antor, if known, are notified by tele-phone, telefax, or other rapid means of that designation. The designation willbe confirmed by a written Notice of Designation.

(b) A Notice of Designation normallycontains, to the extent known

(1) The name of the vessel or facilitydesignated as the source;

(2) The location, date, and time of the incident;

(3) The type of quantity of oil in-

volved;(4) The date of the designation;(5) The procedures for accepting or

denying the designation; and(6) The name, address, telephone

number, and, if available, telefax num-ber of the responsible Federal officialto whom further communication re-grading the incident, advertisement of the incident, or denial of designationshould be directed.

136.307 Denial of designation.(a) Within five days after receiving a

Notice of Designation under 136.305,the responsible party or guarantor maydeny the designation.

(b) A denial of designation must (1) Be in writing;(2) Identify the Notice of Designa-

tion;(3) Give the reasons for the denial

and provide a copy of all supportingdocuments; and

(4) Be submitted to the officialnamed in the Notice of Designation.

(c) A denial is deemed received on thedate the denial is actually received bythe official named in the Notice of Des-ignation.

A DVERTISEMENT

136.309 Advertisement determina-tions.

(a) The Director, NPFC, determinesfor each incident the type, geographicscope, frequency, and duration of ad-vertisement required.

(b) In making the determinationspecified in paragraph (a) of this sec-tion, the Director, NPFC, may con-sider

(1) The nature and extent of eco-nomic losses that have occurred or arelikely to occur;

(2) The potential claimants who arelikely to incur economic losses;

(3) The geographical area that is orwill likely be affected;

(4) The most effective method of rea-sonably notifying potential claimantsof the designation and procedures of submitting claims; and

(5) Relevant information or rec-ommendations, if any, submitted by, oron behalf of, the responsible party orguarantor of the designated source.

(c) The Director, NPFC, provides thespecific requirements for advertise-ment for each incident to the respon-sible party or guarantor of the des-ignated source.

(d) If a responsible party or guar-antor has not denied designation in ac-cordance with 136.307, the party orguarantor shall advertise, in accord-ance with the requirements of this sub-part, the designation and the proce-dures by which claims may be pre-sented. The advertisement must begin



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not later than 15 days after the date of the designation made under 136.305.

(e) If there is no designation under 136.305, if the source of the dischargeor threat is a public vessel, or if the re-sponsible party and guarantor of thesource designated have denied the des-ignation or failed to meet the require-ments for advertisement in this sec-tion, the Director, NPFC, may adver-tise procedures for presenting claims.

136.311 Types of advertisement.Advertisement required by the Direc-

tor, NPFC, will normally include oneor more of the following:

(a) Paid advertisements in a news-paper or newspapers having general cir-culation in the area designated by theDirector, NPFC.

(b) Notice posted in marinas, marinesupply stores, bait and tackle shops,and other appropriate business estab-lishments or public facilities in thearea designated by the Director, NPFC.

(c) News releases to newspapers,radio stations, television stations, andcable services having general circula-tion in the area designated by the Di-rector, NPFC.

(d) Other means approved by the Di-rector, NPFC, under the circumstancesof each case.

136.313 Content of advertisement.Each advertisement required by this

subpart may be required to contain thefollowing information or to indicatewhere this information may be con-tained:

(a) Location, date, and time of the in-cident.

(b) Geographical area affected, as de-termined by the FOSC or Director,NPFC.

(c) Type and quantity of oil involved.(d) Name or other description of the

source designated by the FOSC or Di-rector, NPFC.

(e) Name of the responsible party andguarantor of the designated source.

(f) Name, address, telephone number,office hours, and work days of the per-son or persons to whom claims are tobe presented and from whom claim in-formation can be obtained.

(g) The procedures by which a claimmay be presented.

(h) Other information required by theDirector, NPFC, under the cir-cumstances of each case.

PART 138 FINANCIAL RESPONSI-BILITY FOR WATER POLLUTION(VESSELS)

Sec.138.10 Scope .138.12 Applicability.138.15 Implementation schedule.138.20 Definitions.138.30 General.

138.40 Where to apply for and obtain forms.138.50 Time to apply.138.60 Applications, general instructions.138.65 Issuance and carriage of Certificates.138.70 Renewal of Certificates.138.80 Financial responsibility, how estab-

lished.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.A PPENDIX A TO P ART 138 A PPLICATION F ORM .A PPENDIX B TO P ART 138 I NSURANCE G UAR -

ANTY F ORMA PPENDIX C TO P ART 138 M ASTER I NSURANCE

G UARANTY F ORMA PPENDIX D TO P ART 138 S URETY B OND

G UARANTY F ORMA PPENDIX E TO P ART 138 F INANCIAL G UAR -

ANTY F ORMA PPENDIX F TO P ART 138 M ASTER F INANCIAL

G UARANTY F ORM

A UTHORITY : 33 U.S.C. 2716, 2716a; 42 U.S.C.9608, 9609; sec. 7(b), E.O. 12580, 3 CFR, 1987Comp., p. 198; E.O. 12777, 3 CFR 1991 Comp., p.351; 49 CFR 1.46.

Section 138.30 also issued under the author-ity of 46 U.S.C. 2103, 14302.

S OURCE : CGD 91 005, 59 FR 34227, July 1,1994, unless otherwise noted.

138.10 Scope.This part sets forth the procedures

by which an operator of a vessel mayestablish and maintain, for itself, and,where the operator is not the owner ordemise charterer, for the owner and de-mise charterer of the vessel, evidenceof financial responsibility to cover li-ability of the owner, operator, and de-mise charterer arising under

(a) Section 1002 of the Oil PollutionAct of 1990 (OPA 90) (33 U.S.C. 2702);and



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33 CFR Ch. I (7 101 Edition) 138.12

(b) Section 107(a)(1) of the Com-prehensive Environmental Response,Compensation, and Liability Act, asamended (CERCLA) (42 U.S.C.9607(a)(1)).

[CGD 91 005, 59 FR 34227, July 1, 1994, asamended by CGD 91 005, 61 FR 9274, Mar. 7,1996]

138.12 Applicability.(a) This part applies to (1) A tank vessel of any size, and to a

foreign-flag vessel of any size, usingthe waters of the exclusive economiczone to transship or lighter oil (wheth-er delivering or receiving) destined fora place subject to the jurisdiction of the United States; and

(2) A vessel using the navigable wa-ters of the United States or any port orplace subject to the jurisdiction of theUnited States, including an offshore fa-cility subject to the jurisdiction of theUnited States, except

(i) A vessel that is 300 gross tons orless; and

(ii) A non-self-propelled barge thatdoes not carry oil as cargo or fuel anddoes not carry hazardous substances ascargo.

(b) For the purposes of financial re-sponsibility under OPA 90, a mobile off-shore drilling unit is treated as a tankvessel when it is being used as an off-shore facility and there is a discharge,or a substantial threat of a discharge,of oil on or above the surface of thewater. A mobile offshore drilling unitis treated as a vessel other than a tankvessel when it is not being used as anoffshore facility.

(c) In addition to a non-self-propelledbarge over 300 gross tons that carrieshazardous substances as cargo, for thepurposes of financial responsibilityunder CERCLA, this part applies to aself-propelled vessel over 300 grosstons, even if it does not carry haz-

ardous substances.(d) This part does not apply to a pub-

lic vessel.

[CGD 91 005, 59 FR 34227, July 1, 1994, asamended at 61 FR 9274, Mar. 7, 1996]

138.15 Implementation schedule.(a) A tank vessel is subject to the fol-

lowing implementation schedule:(1) Until December 28, 1994, a tank

vessel is required to carry a Certificate

issued under parts 130, 131, and 132 of this chapter, as may be applicable tothat vessel. On or after that date, anduntil July 1, 1995, a non-self-propelledtank vessel must carry a Certificateissued under parts 130, 131, and 132 of this chapter, as may be applicable tothat vessel, unless it carries a Certifi-cate issued under this part.

(2) A self-propelled tank vessel towhich this part applies and which car-ries a valid Certificate issued underpart 130 of this chapter may not oper-ate on or after December 28, 1994, un-less the operator of that vessel has sub-mitted to the Director, NPFC, beforethat date acceptable evidence of finan-cial responsibility applicable to thatvessel under this part. A self-propelledtank vessel covered by that evidence of financial responsibility before Decem-ber 28, 1994, may continue to operatewith the Certificate issued under part130 of this chapter. The expiration dateof the Certificate issued under part 130of this chapter for that vessel will bedeemed to be December 28, 1995, regard-less of the expiration date appearing onthe Certificate. Thereafter, a Certifi-cate issued under this part is required.

(3) A self-propelled tank vessel towhich this part applies, but which doesnot carry a valid Certificate issuedunder part 130 of this chapter beforeDecember 28, 1994, may not operate onor after that date unless it carries aCertificate under this part.

(4) A non-self-propelled tank vesselto which this part applies may not op-erate on or after July 1, 1995, without aCertificate issued under this part. Anon-self-propelled tank vessel may con-tinue to operate with a Certificateissued under parts 130, 131, and 132 of this chapter, as may be applicable tothat vessel, until that date.

(b) A vessel that is not a tank vessel(non-tank vessel) is subject to the fol-lowing implementation schedule:

(1) Until December 28, 1997, a non-tank vessel is required to carry a Cer-tificate issued under parts 130 and 132of this chapter, as may be applicable tothat

CFR 2001 Title33 Vol2 ChapI SubchapM

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