§2716 — Title 33 Navigation and Navigable Waters | U.S. Code

Summary

Responsible parties must prove they can pay for oil spill cleanup and damages. That includes owners or operators of certain vessels (vessels over 300 gross tons except non-self-propelled vessels that do not carry oil as cargo or fuel; vessels that transship or lighter oil in the exclusive economic zone for places under U.S. jurisdiction; and tank vessels over 100 gross tons) and certain offshore oil facilities and deepwater ports. Offshore facilities that are seaward of the ordinary low water line or in coastal inland waters, that are used for exploring, drilling, producing, or transporting oil, and that could spill more than 1,000 barrels (or a smaller amount if the President decides) must show financial responsibility. The basic amounts are $35,000,000 for facilities located seaward of a State’s seaward boundary and $10,000,000 for those landward of that boundary. The President can require more up to $150,000,000 based on risk. Deepwater ports must show enough to cover the maximum liability under section 2704(a). If one person is responsible for more than one site, they need only meet the largest single requirement. Financial responsibility can be shown by insurance, surety bond, guarantee, letter of credit, qualifying as a self-insurer, or other acceptable proof. Bonds must be from companies allowed to do business in the United States. The Secretary of the Treasury can withhold or revoke a vessel’s clearance, deny entry, detain, seize, or forfeit a vessel that lacks the required proof. Claimants can sue a guarantor directly for removal costs and damages, but for offshore facilities a direct claim against a guarantor is allowed only if the responsible party is insolvent, has filed for bankruptcy, or the United States asserts the claim. Not later than 1 year after October 19, 1996, the President had to create rules for that process. A guarantor’s total liability cannot be more than the amount of financial responsibility it provided. Existing related regulations remain in force unless replaced, and the Secretary may issue a single unified certificate of financial responsibility.

Title 33, §2716

Navigation and Navigable Waters — Source: USLM XML via OLRC

(a)The responsible party for—

(1)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;

(2)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; or

(3)any tank vessel over 100 gross tons using any place subject to the jurisdiction of the United States;

(b)(1)The Secretary of the Treasury shall withhold or revoke the clearance required by section 60105 of title 46 of any vessel subject to this section that does not have the evidence of financial responsibility required for the vessel under this section.

(2)The Secretary may—

(A)deny entry to any vessel to any place in the United States, or to the navigable waters, or

(B)detain at the place,

(3)Any vessel subject to the requirements of this section which is found in the navigable waters without the necessary evidence of financial responsibility for the vessel shall be subject to seizure by and forfeiture to the United States.

(c)(1)(A)Except as provided in paragraph (2), a responsible party with respect to an offshore facility that—

(i)(I)is located seaward of the line of ordinary low water along that portion of the coast that is in direct contact with the open sea and the line marking the seaward limit of inland waters; or

(II)is located in coastal inland waters, such as bays or estuaries, seaward of the line of ordinary low water along that portion of the coast that is not in direct contact with the open sea;

(ii)is used for exploring for, drilling for, producing, or transporting oil from facilities engaged in oil exploration, drilling, or production; and

(iii)has a worst-case oil spill discharge potential of more than 1,000 barrels of oil (or a lesser amount if the President determines that the risks posed by such facility justify it),

(B)Except as provided in subparagraph (C), the amount of financial responsibility for offshore facilities that meet the criteria of subparagraph (A) is—

(i)$35,000,000 for an offshore facility located seaward of the seaward boundary of a State; or

(ii)$10,000,000 for an offshore facility located landward of the seaward boundary of a State.

(C)If the President determines that an amount of financial responsibility for a responsible party greater than the amount required by subparagraph (B) is justified based on the relative operational, environmental, human health, and other risks posed by the quantity or quality of oil that is explored for, drilled for, produced, or transported by the responsible party, the evidence of financial responsibility required shall be for an amount determined by the President not exceeding $150,000,000.

(D)In a case in which a person is a responsible party for more than one facility subject to this subsection, evidence of financial responsibility need be established only to meet the amount applicable to the facility having the greatest financial responsibility requirement under this subsection.

(E)For the purpose of this paragraph, the seaward boundary of a State shall be determined in accordance with section 1301(b) of title 43.

(2)Each responsible party with respect to a deepwater port shall establish and maintain evidence of financial responsibility sufficient to meet the maximum amount of liability to which the responsible party could be subjected under section 2704(a) of this title in a case where the responsible party would be entitled to limit liability under that section. If the Secretary exercises the authority under section 2704(d)(2) of this title to lower the limit of liability for deepwater ports, the responsible party shall establish and maintain evidence of financial responsibility sufficient to meet the maximum amount of liability so established. In a case in which a person is the responsible party for more than one deepwater port, evidence of financial responsibility need be established only to meet the maximum liability applicable to the deepwater port having the greatest maximum liability.

(d)Financial responsibility under this section may be established by any one, or by any combination, of the following methods which the Secretary (in the case of a vessel) or the President (in the case of a facility) determines to be acceptable: evidence of insurance, surety bond, guarantee, letter of credit, qualification as a self-insurer, or other evidence of financial responsibility. Any bond filed shall be issued by a bonding company authorized to do business in the United States. In promulgating requirements under this section, the Secretary or the President, as appropriate, may specify policy or other contractual terms, conditions, or defenses which are necessary, or which are unacceptable, in establishing evidence of financial responsibility to effectuate the purposes of this Act.

(e)(1)Subject to paragraph (2), a claim for which liability may be established under section 2702 of this title may be asserted directly against any guarantor providing evidence of financial responsibility for a responsible party liable under that section for removal costs and damages to which the claim pertains. In defending against such a claim, the guarantor may invoke—

(A)all rights and defenses which would be available to the responsible party under this Act;

(B)any defense authorized under subsection (d); and

(C)the defense that the incident was caused by the willful misconduct of the responsible party.

(2)A claim may be asserted pursuant to paragraph (1) directly against a guarantor providing evidence of financial responsibility under subsection (c)(1) with respect to an offshore facility only if—

(A)the responsible party for whom evidence of financial responsibility has been provided has denied or failed to pay a claim under this Act on the basis of being insolvent, as defined under section 101(32) of title 11, and applying generally accepted accounting principles;

(B)the responsible party for whom evidence of financial responsibility has been provided has filed a petition for bankruptcy under title 11; or

(C)the claim is asserted by the United States for removal costs and damages or for compensation paid by the Fund under this Act, including costs incurred by the Fund for processing compensation claims.

(3)Not later than 1 year after October 19, 1996, the President shall promulgate regulations to establish a process for implementing paragraph (2) in a manner that will allow for the orderly and expeditious presentation and resolution of claims and effectuate the purposes of this Act.

(f)Nothing in this Act shall impose liability with respect to an incident on any guarantor for damages or removal costs which exceed, in the aggregate, the amount of financial responsibility which that guarantor has provided for a responsible party pursuant to this section. The total liability of the guarantor on direct action for claims brought under this Act with respect to an incident shall be limited to that amount.

(g)Any regulation relating to financial responsibility, which has been issued pursuant to any provision of law repealed or superseded by this Act, and which is in effect on the date immediately preceding the effective date of this Act, is deemed and shall be construed to be a regulation issued pursuant to this section. Such a regulation shall remain in full force and effect unless and until superseded by a new regulation issued under this section.

(h)The Secretary may issue a single unified certificate of financial responsibility for purposes of this Act and any other law.

Notes & Related Subsidiaries

Editorial Notes

References in Text

This Act, referred to in subsecs. (d) to (h), is Pub. L. 101–380, Aug. 18, 1990, 104 Stat. 484, known as the Oil Pollution Act of 1990, which is classified principally to this chapter. For complete classification of this Act to the Code, see

Short Title

note set out under section 2701 of this title and Tables. The

Effective Date

of this Act, referred to in subsec. (g), is the

Effective Date

of Pub. L. 101–380 which is applicable to incidents occurring after Aug. 18, 1990, see section 1020 of Pub. L. 101–380, set out as an

Effective Date

note under section 2701 of this title. Codification In subsec. (b)(1), “section 60105 of title 46” substituted for “section 4197 of the Revised Statutes of the United States” on authority of Pub. L. 109–304, § 18(c), Oct. 6, 2006, 120 Stat. 1709, which Act enacted section 60105 of Title 46, Shipping.

Amendments

2025—Subsecs. (d) to (i). Pub. L. 119–60 redesignated subsecs. (e) to (i) as (d) to (h), respectively, and, in subsec. (e)(1)(B) as redesignated, substituted “subsection (d)” for “subsection (e)”. 2010—Subsec. (a)(3). Pub. L. 111–281 added par. (3). 1996—Subsec. (c)(1). Pub. L. 104–324, § 1125(a)(1), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: “Except as provided in paragraph (2), each responsible party with respect to an offshore facility shall establish and maintain evidence of financial responsibility of $150,000,000 to meet the amount of liability to which the responsible party could be subjected under section 2704(a) of this title in a case in which the responsible party would be entitled to limit liability under that section. In a case in which a person is the responsible party for more than one facility subject to this subsection, evidence of financial responsibility need be established only to meet the maximum liability applicable to the facility having the greatest maximum liability.” Subsec. (f). Pub. L. 104–324, § 1125(a)(2), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: “Any claim for which liability may be established under section 2702 of this title may be asserted directly against any guarantor providing evidence of financial responsibility for a responsible party liable under that section for removal costs and damages to which the claim pertains. In defending against such a claim, the guarantor may invoke (1) all rights and defenses which would be available to the responsible party under this Act, (2) any defense authorized under subsection (e), and (3) the defense that the incident was caused by the willful misconduct of the responsible party. The guarantor may not invoke any other defense that might be available in proceedings brought by the responsible party against the guarantor.” Subsec. (g). Pub. L. 104–324, § 1125(a)(3), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: “Nothing in this Act shall impose liability with respect to an incident on any guarantor for damages or removal costs which exceed, in the aggregate, the amount of financial responsibility required under this Act which that guarantor has provided for a responsible party.” 1995—Subsec. (a). Pub. L. 104–55 substituted “the responsible party could be subjected under section 2704(a) or (d) of this title” for “, in the case of a tank vessel, the responsible party could be subject under section 2704(a)(1) or (d) of this title, or to which, in the case of any other vessel, the responsible party could be subjected under section 2704(a)(2) or (d) of this title”.

Statutory Notes and Related Subsidiaries

Effective Date

of 1996 Amendment Pub. L. 104–324, title XI, § 1125(b), Oct. 19, 1996, 110 Stat. 3983, provided that: “The amendment made by subsection (a)(2) [amending this section] shall not apply to any final rule issued before the date of enactment of this section [Oct. 19, 1996].”

Executive Documents

Delegation of Functions Specific functions of President under subsec. (e) of this section delegated to Secretary of the Interior and Secretary of the Department in which the Coast Guard is operating by section 5(a) of Ex. Ord. No. 12777, Oct. 18, 1991, 56 F.R. 54764, as amended, set out as a note under section 1321 of this title.

§2716 Financial responsibility

Summary

Title 33, §2716

Notes & Related Subsidiaries

Editorial Notes

References in Text

Short Title

Effective Date

Effective Date

Effective Date

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Executive Documents

Citations & Metadata