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Electronic Code of Federal Regulations

e-CFR data is current as of April 3, 2020

Title 33Chapter ISubchapter MPart 138 → Subpart B


Title 33: Navigation and Navigable Waters
PART 138—FINANCIAL RESPONSIBILITY FOR WATER POLLUTION (VESSELS) AND OPA 90 LIMITS OF LIABILITY (VESSELS, DEEPWATER PORTS AND ONSHORE FACILITIES)


Subpart B—OPA 90 Limits of Liability (Vessels, Deepwater Ports and Onshore Facilities)


Contents
§138.200   Scope.
§138.210   Applicability.
§138.220   Definitions.
§138.230   Limits of liability.
§138.240   Procedure for updating limits of liability to reflect significant increases in the Consumer Price Index (Annual CPI-U) and statutory changes.

Source: 80 FR 72355, Nov. 19, 2015, unless otherwise noted.

§138.200   Scope.

This subpart sets forth the limits of liability under Title I of the Oil Pollution Act of 1990, as amended (33 U.S.C. 2701, et seq.) (OPA 90), for vessels, deepwater ports, and onshore facilities, as adjusted under OPA 90 (33 U.S.C. 2704(d)). This subpart also sets forth the method and procedure the Coast Guard uses to periodically adjust the OPA 90 limits of liability by regulation under OPA 90 (33 U.S.C. 2704(d)(4)), to reflect significant increases in the Consumer Price Index (CPI), and to update the limits of liability when they are amended by statute. In addition, this subpart cross-references the U.S. Department of the Interior regulation setting forth the OPA 90 limit of liability applicable to offshore facilities, as adjusted under OPA 90 (33 U.S.C. 2704(d)(4)) to reflect significant increases in the CPI.

§138.210   Applicability.

This subpart applies to you if you are a responsible party for a vessel, a deepwater port, or an onshore facility (including, but not limited to, motor vehicles, rolling stock and onshore pipelines), unless your liability is unlimited under OPA 90 (33 U.S.C. 2704(c)).

§138.220   Definitions.

(a) As used in this subpart, the following terms have the meanings set forth in OPA 90 (33 U.S.C. 2701): deepwater port, facility, gross ton, liability, oil, offshore facility, onshore facility, responsible party, tank vessel, and vessel.

(b) As used in this subpart—

Annual CPI-U means the annual “Consumer Price Index—All Urban Consumers, Not Seasonally Adjusted, U.S. City Average, All items, 1982-84=100”, published by the U.S. Department of Labor, Bureau of Labor Statistics.

Current period means the year in which the Annual CPI-U was most recently published by the U.S. Department of Labor, Bureau of Labor Statistics.

Director, NPFC means the person in charge of the U.S. Coast Guard, National Pollution Funds Center (NPFC), or that person's authorized representative.

Edible oil tank vessel means a tank vessel referred to in OPA 90 (33 U.S.C. 2704(c)(4)(A)).

Oil spill response vessel means a tank vessel referred to in OPA 90 (33 U.S.C. 2704(c)(4)(B)).

Previous period means the year in which the previous limit of liability was established, or last adjusted by statute or regulation, whichever is later.

Single-hull means the hull of a tank vessel that is constructed or adapted to carry, or that carries, oil in bulk as cargo or cargo residue, that is not a double hull as defined in 33 CFR part 157. Single-hull includes the hull of any such tank vessel that is fitted with double sides only or a double bottom only.

§138.230   Limits of liability.

(a) Vessels. (1) The OPA 90 limits of liability for tank vessels, other than edible oil tank vessels and oil spill response vessels, are—

(i) For a single-hull tank vessel greater than 3,000 gross tons, the greater of $3,700 per gross ton or $27,422,200;

(ii) For a tank vessel greater than 3,000 gross tons, other than a single-hull tank vessel, the greater of $2,300 per gross ton or $19,943,400;

(iii) For a single-hull tank vessel less than or equal to 3,000 gross tons, the greater of $3,700 per gross ton or $7,478,800; and

(iv) For a tank vessel less than or equal to 3,000 gross tons, other than a single-hull tank vessel, the greater of $2,300 per gross ton or $4,985,900.

(2) The OPA 90 limits of liability for any vessel other than a vessel listed in paragraph (a)(1) of this section, including for any edible oil tank vessel and any oil spill response vessel, are the greater of $1,200 per gross ton or $997,100.

(b) Deepwater ports. (1) The OPA 90 limit of liability for any deepwater port, including for any component pipelines, other than a deepwater port listed in paragraph (b)(2) of this section, is $672,514,900;

(2) The OPA 90 limits of liability for deepwater ports with limits of liability established by regulation under OPA 90 (33 U.S.C. 2704(d)(2)), including for any component pipelines, are—

(i) For the Louisiana Offshore Oil Port (LOOP), $102,245,000; and

(ii) [Reserved]

(c) Onshore facilities. The OPA 90 limit of liability for onshore facilities, including, but not limited to, motor vehicles, rolling stock and onshore pipelines, is $672,514,900.

(d) Offshore facilities. The OPA 90 limit of liability for offshore facilities other than deepwater ports, including for any offshore pipelines, is set forth at 30 CFR 553.702.

[80 FR 72355, Nov. 19, 2015, as amended at 84 FR 39974, Aug. 13, 2019]

§138.240   Procedure for updating limits of liability to reflect significant increases in the Consumer Price Index (Annual CPI-U) and statutory changes.

(a) Update and publication. The Director, NPFC, will periodically adjust the limits of liability set forth in §138.230(a) through (c) to reflect significant increases in the Annual CPI-U, according to the procedure for calculating limit of liability inflation adjustments set forth in paragraphs (b)-(d) of this section, and will publish the inflation-adjusted limits of liability and any statutory amendments to those limits of liability in the Federal Register as amendments to §138.230. Updates to the limits of liability under this paragraph are effective on the 90th day after publication in the Federal Register of the amendments to §138.230, unless otherwise specified by statute (in the event of a statutory amendment to the limits of liability) or in the Federal Register notice amending §138.230.

(b) Formula for calculating a cumulative percent change in the Annual CPI-U. (1) The Director, NPFC, calculates the cumulative percent change in the Annual CPI-U from the year the limit of liability was established, or last adjusted by statute or regulation, whichever is later (i.e., the previous period), to the most recently published Annual CPI-U (i.e., the current period), using the following escalation formula:

Percent change in the Annual CPI-U = [(Annual CPI-U for Current Period−Annual CPI-U for Previous Period) ÷ Annual CPI-U for Previous Period] × 100.

(2) The cumulative percent change value calculated using the formula in paragraph (b)(1) of this section is rounded to one decimal place.

(c) Significance threshold. Not later than every three years from the year the limits of liability were last adjusted for inflation, the Director, NPFC, will evaluate whether the cumulative percent change in the Annual CPI-U since that date has reached a significance threshold of 3 percent or greater. For any three-year period in which the cumulative percent change in the Annual CPI-U is less than 3 percent, the Director, NPFC, will publish a notice of no inflation adjustment to the limits of liability in the Federal Register. If this occurs, the Director, NPFC, will recalculate the cumulative percent change in the Annual CPI-U since the year in which the limits of liability were last adjusted for inflation each year thereafter until the cumulative percent change equals or exceeds the threshold amount of 3 percent. Once the 3-percent threshold is reached, the Director, NPFC, will increase the limits of liability, by regulation using the procedure set forth in paragraph (a) of this section, for all source categories (including any new limit of liability established by statute or regulation since the last time the limits of liability were adjusted for inflation) by an amount equal to the cumulative percent change in the Annual CPI-U from the year each limit was established, or last adjusted by statute or regulation, whichever is later. Nothing in this paragraph shall prevent the Director, NPFC, in the Director's sole discretion, from adjusting the limits of liability for inflation by regulation issued more frequently than every three years.

(d) Formula for calculating inflation adjustments. The Director, NPFC, calculates adjustments to the limits of liability in §138.230 for inflation using the following formula:

New limit of liability = Previous limit of liability + (Previous limit of liability × percent change in the Annual CPI-U calculated under paragraph (b) of this section), then rounded to the closest $100.

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