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ENERGY METALS ENERGY METALS METALS ENERGY METALS ENERGY ENERGY METAL .0"-NERGY METALS METALS ENERr 7ALS ENE RGY ENERGYMF METALS EV 'SENERGY ENERGV' 'METALS 0 METAI IERGY ENERGYM 3"FY METALS Ln'* %J Ocean Thermal Energy Conversion Licensing Regulations U.S. DEPARTMENT OF COMMERCE TK Naflonal Oceanic and Atmospheric Administration 1056 Office of Ocean Minerals and Energy 034 July 1981 1981 c.2 Vb Friday July 31, 1981 Part IV De-,%artment of Commerce National Oceanic- and Atmospheric Administration Licensing of Ocean Thermal Energy Conversion Facilities and Plantships 39388 Federal Register Vol. 48. No. 147 / Friday July 31. 1981 Rules and Rregulations DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 981 Licensing of Ocean Thermal Energy Conversion Facilities and Plantships AGENCY: National Oceanic and Atmospheric Administration (NOAA), Commerce ACTION: Final Rule. SUMMARY: NOAA is establishing a stable legal system and a streamlined licensing process to facilitate commercial development of ocean thermal energy conversion (OTEC) facilities and plantships. This Final Rule sets out the details of a simplified licensing system for ownership, construction, location, and operation of OTEC facilities and plantships which are associated with the United States or U.S. citizens, and is being issued in accordance with the responsibilities assigned to NOAA by the Ocean Thermal Energy Conversion Act of 1980. Pub. L. 96-320, ("the Act"). EFFECTIVE DATE: September 3, 1981. ADDRESS: Requests for documents associated with this rulemaking should be made to the Director, Office of Ocean Minerals and Energy, NOAA. Room 410, Page 1 Building, 2001 Wisconsin Avenue, NW, Washington, D.C. 20235 FOR FUTHER INFORMATION CONTACT: Richard Norling or Lowell Martin, Office of Ocean Minerals and Energy, NOAA, Room 410, Page 1 Building,2001 Wisconsin Avenue, NW, Washington, D.C. 20235:Telephone: (202)254-3483. SUPPLEMENTARY INFORMATION: 1. The principal author of this Final Rule is Lowell F. Martin of the Office of Ocean Minerals and Energy, NOAA. assisted by the NOAA Office of General Counsel. II. Prior Actions in the Rulemaking A. Environmental-Scoping Process To provide for an early and open process to determine the scope of environmental issues associated with development of OTEC licensing regulations. NOAA developed an environmental issues discussion document and held a public "scoping" meeting on October 30, 1980. Notice of the scoping meeting and the availabilty of the discussion paper was published at 45FR 83543 and 63544 on September 25, 1980. A draft environmental impact statement on this rulemaking was made available for public comment on April 3, 1981, 48 FR 20283. (See Section VI.E of this preamble for information on the final environmental impact statement developed as part of the rulemaking.) B. Rulemaking To provide an early opportunity for interested persons to contribute to development of these regulations, NOAA published an Advance Notice of Proposed Rulemaking (ANPR) at 45 FR 77038 on November 21, 1980. The ANPR identified three general alternative regulatory approaches under consideratin by NOAA as well as 20 specific issue on which NOAA invited public comment. The ANPR was mailed to several hundred interested persons. A public hearing was held on January 7, 1981. A Notice of Proposed Rulemaking (NPR) was published in the Federal Registar on March 30, 1981, 48 FR 19418. Public hearings on the NPR were held in Honolulu, Hawaii, San Juan, Puerto Rico, and Washington, D.C. III. Availability of Comments Comments received in response to the ANPR and NPR are available for public examination and copying during normal business hours in Room 410, Page 1 Building, 2001 Wisconsin Avenue, N.W., Washington, D.C. IV. NOAA'S Rresponses to Comments Received on the NPR As noted in section IIb of this preamble, NOAA published an NPR on the OTEC licensing program on March 30, 1981. In response to the written comments received and statements made at the public hearings NOAA has developed these final rules. A. General Comments - The eight general comments received on the NPR were favorable to the positions taken by NOAA in the NPR. In particular there was strong endorsement for the voluntary Consolidated Application Review or CAR process which has been incorporated into these final rules in Subpart C. Numerous commentors strongly favored the procedural deadlines proposed in the NPR, which were derived from the Act. and they have been codified in these final rules. B. Land-based OTEC facilites NOAA took the position in the NPR that the legislative history of the Act demonstrated Congressional intent that OTEC facilities located in part on land be subject to the licensing requirement of these regulations. However, the difficulty in documenting-such "land-based" facilities under existing U.S. vessel documentation laws was recognized. All commentors on this issue except the U.S. Coast Guard endored NOAA's position as necessary for orderly commercial development of OTEC. particularly from the perspective of protection of the thermal resource necessary to the economic viability of an OTEC facility. The Coast Guard comment expressed continuing reservations regarding the documentation issue. NOAA and the Coast Guard have reviewed this problem and determined that its solution rests in recommending to Congress that the Act be amended so that documentation as a prerequisite to licensing will not be required for an OTEC facility located in part above the highwater mark, i.e. a "land-based" facility. NOAA and the Coast Guard will work together to achieve this legislative result. C. Specific Comments This section of the preamble-describes specific comments received on the NPR and NOAA's responses as reflected in the final rules. Section numbers refer to sections of the final rules, which have the 1001 series used in the NPR. 981.40 Definitions. One commentor suggested that the definition of "designated application area" be changed to refer only to impacts of the proposed OTEC facility or plantship on existing OTEC facilities or plantships. Because section 102(e) of the Act requires consideration of the effect of licensing the proposed OTEC operation on other potential OTEC operations in the same geographic area, the suggestion has not been adopted. Another commentor suggested that the definition of "pollutant" be changed by substituting the words "temperature difference" for the word "heat" because an OTEC facility or plantship could discharge water drawn up from the deep ocean at a temperature below that of the surrounding waters. This change has been adoped in the final regulations. 981.30 Who must apply for an OTEC license? (and who does not need one). One commentor requested that this section be changed to make clear that site evaluation and pre-constuction testing activities conducted prior to receiving an OTEC license are not subject to the requirements of these regulations. NOAA believes that the wording of 1001.50 of the NPR adequately addresses this situation and do change has been made in these final rules. Note, however, that Subpart H of this Part is reserved for such regulations, shoudl they become necessary in the future. Another commentor expressed Federal Register Vol. A No. 147 Friday, July 31. 1981 Rules and Regulations 39389 displeasure over the FACT THAT the assure that other agencies receiving submitted. but submitted voluntarily, be DEPARTMENt of Energy would exERCISE confidential iNforMAtion for review did afforded confidEntial treatment. control over the operation of OTEC not improperly release it NOAA is of 981.130 AppLICATION Fee. A number demonstration projects so designated by the opinion that most of these of commentORs requested justification of the Secretary of Energy UNDer the suggestions have merit for assuring the AMOUNT of the apPLICATION FEE which proposed wording of THIS section. That proper treatment of information for totals $250,000 for fUll processing of an situation is a requirement of section 118 which confidential treATMEnt has been applICATION. The amount of the fee is of the Act and no change has been MADE requested and for reducing fixed at the ESTimated incremental cost in these final REGULATIONS. ADMINIStrative burdens both on to NOAA of processing the apPLICATIOn. A COMMENTor questioned whether or applicants and mEMBERS of the public. including costs to prepare the site- not aN EXISTING fossil fueled power plant Accordingly, this section of the final specific consolidated environmental or other source of waste. heat wOULD be rules has been revised to make optional impact statement required by section required to obtain an OTEC license if pROVision of the justification for 107(E) of the ACT. That cONSOLIDATED the waste heat from that installation confidentIAL treAtment at the time statement must fulfill the requirements were used to augment the thermal information is submitted. A person may of aLl Federal agencies in carrying out resource of an OTEC facility. THe choose to dEFER submitting the their permittING and authorizing existing source of waste heat would not justification untIL suCh time as NOAA responsibilities on the license be subject to licensing under these . receives A request for reLEASE of the appLICATION. NOAA developed the REGULATIONS. However. a cHange in the confidential information. At that time overall COST eSTIMATE ON the basis that discharge conditions associated with the the submittER Is given an opportUnITY to two person-years of effort would be existing power plant or other heaT PROVIDE the justification amend one required withIN the NOAA program source might well rEqUIRE review and previously SUBMITTED OR TO WAIVE THE OFFICE TO PROCESS A SINGLE APPLICATION. revision of the Federal. State and local. claim of conFIDENTIALity. To enable THE estimate also includes costs of permits assOCIATED wITH THE existING reviewers to better determine the extent holding thEIr required public hearings on operation. to which portions of an apPLIcation ARE the appLICATION IN the District of The qUESTION was raised In public subject to conFIDENTIAL treatment Columbia and in adjacent coastal hearings AS to the status of domestic provision has been madE for assuring STATES as well as support COSTs for OTEC ActivitIES related to expOrt of that review copies of applications are environmental, analysis and technical facilities and plantSHIPs. UNDER THE Act; clEARLY marked to indicate wheRE review of thE application. The such aCTIVITIEs do not require. a LICENse Material has been DELETED. TO assist processing cost estimate does not under these regulations. unless THEy NOAA in propeRLY maintaining the include general ADMINISTRATIVE overhead involve construction ACTIVITIES confidentiality OF protected inFORMATION or costS associated with other Federal "CONDUCTED at sea;" See the MEANING OF the suBMITTER has beEN required to agency actions on the application. segregate those pORTIONS OF THE the term CONSTRUCTION AS DEFINED IN Because of comments received, NOAA 981.40 OF THE FINAL REGULATIONS. 981.70 PRE-APPLICATION infORMATION for which confidential has reviewed the basis for iTs original treAment hAS been requested from cost esTIMATE and has found no reason CONSULTATION. ONE COMMENTOR REQUESTED THOSE for which NO claim of to change it Accordingly, the overall CLARIFICATION AS TO WHETHER NOAA WOULD confidentiality is asserted. FINALLY, the license application fee remains set at assist potential license applicants in: contents of the letter which N0AA will $250,000 to cover NOAA's reasonablE approaching other Agencies involved in- forward to other agencies along with administrative costs, as required by the tHe license review process uNder the protected information are described. Act. PROVISIONS of this section. NOAA believes that such assistance tO The letter will advise other government SeveraL commentORs rEqueSTED that potential aPPLicants is within the scoPe entities of the extent OF protection NOAA dEfer collection of the fee until required and of the procedures to be such time as the OTEC operation of its role in facilitating the Federal followed in the event that the other actually commenced commercial State permitting processes and the final- government entity should receive a activities or began to generate revenues. rules clearly state that such assistance reQUest for disclosure. NOAA has not NOAA believes that the Act does not will be made available to potentiaL provided for an aDMINIStrative appeal allow such deferral of payment of the applicantS uNder this section. process prior to actual disclosure of fees. Thus the phased collection 981.100 ConfIdeNTIALITy of confidenTIal information, However, schedule proposed in the NPR has been INFORMATIon. Several COMMENTORS NOAA will provide advance NOTICE of retained in these FInal regulations. One requested that this section be changeD to aLLOW for prOVISIOn of the JUSTIFIcation impending release sufficient to allow the cOmmentor proposed that NOAA for confidential treatment of INFORMATION person requesting confidential treatment establish a post-issuance annual rental at the-time that its release was TO seek judicial review before disclosure fee for use of the thermal resource by an requested. ratheR than at the time the OCCURS. OTEC facility or PLANTSHIP. NOAA has information was submitted to NOAA In respONSE to comments. NOAA has reviewed its authority under the Act and Other comMENTORs requested that cOPIES considered a pre-submission or finds no mandate to impose such a fee. of liceNSE applications available for cOntamporaneOUS with submissiOn One commentor noted that the proposed public review be clearly marked TO determination of cOnfidentiality. THIs rules did not make it clear that the full INdicate wHere material had been approach has been rejected because of application fee must be remitted before deleted due to requests for CONFIDENTIAL its potential for creating a significant NOAA would issue a license. The FInal treatment. One cOMMENTor requested administrative burden while providing version of 981.130 has been amended that a process for appeAL BE provided in little countervailing beneFIT since the to make this clear. the event the Administratar initially cOrrectNess of any determination may 981.150 PUbLIC Inspection and determined to reLease information for change over time. NOAA haS, however, CopyING One cOmmentor noted that this whiCH confidential treatment had been modified the regulations to authorize. on section did not expressly provide for an REQUESTed and one COMMENTOR proposed a case-by-case basis, detErmiNatiONs application to be available for public That a more vigorous effort be made to that information not required to be inspection and copying in each: adjacENT 39390 Federal Register / Val. 48, No. 147 Friday, July 31. 1981 Rules and Regulations coastal State so designated for the the initial application information. the Act DOJ also felt STRONGLY that the application. The final version of this However, the Act does not provide for required 3 years of such information section has been changed to-make it establishment of such a "priOrity of was necessary for assessing trends. clear that the application will be right" through the application Accordingly, the requirement appears in available in aLL designated adjacent mechanism. In the event only a single 981.180(e)(5) of these final regUlations. coastal states for the APPLICATION. application is received fOr a particular 981.190 GENERAL Information on the Provision has been aDDed for public site, the issue of priOrity access to it is OTEC fAcILITY ON PLANTSHIP. Several NOTICE of the loCATIONS wHere the moot In the event multiple OTEC minor changes to this section have been APPLICATION WILL beavailable for public faCILity applicatioNS are received for a made in response to comments received. inspection and copying. particular geographic location. the The requirement for information On �981.180 Information about the provisions of section 102(i) of the Act for projected annual gross and net aPPLIcant and its affILIATEs. Several weighing the national interest in production of electricity or other COmmentors questioned the scope of deciding among competing applications products contained in 1001.180(e)(4)(i) information required by this aNd come into play. The only case where a and (e)(4)(II) of the NPR has been placed subsequent sections of Subpart B "quasi priority of righT" situation is in 981.190(a) of the final regulations. information to be submitted with recOgnized in the Act is in the case Section 981.190(b) has been clarified to application of the NPR The Act where more than one application is indicate that information on the thermodynamic cycle to be employed in Requires that NOAA complete received for a particular area and no processing of the application and make individual application would more the OTEC oPeration Is what is being a decision an issuance of the lIcEnse clearly serve the national interest tHAN requested. Section 981.190(h) has been within 358 days after its receipt. To meet another. In that situation, the Act reworded to make clear that information this deadline and properly coordinate requires-that decisions on the on biofouling controL methOds is being the activities OF other State and Federal applications be made in order of their soLICITED. government agencies involved in the receipt by thE NOAA Administrator. 981.220 OTEC site information rEview, complete information on the Several commentoRS noted that the One commentor noted that national proposed OTEC pLantship or facility Information requested in defense restricted areas in the vicinity MUst be available at the start of the 1001.180(E)(4)(III)AND 1001.180(e)(6) of a proposed OTEC site should be review, The need to stop the review on unit cost of produced electRicity or identified and that change has been process while additional or claRIFYING OTHER PRODUCTS and on estimated incorporated into 981.220(c). It was iNformatiON is sought froM the applicant aMOUNTS of fueL or other raw materials. noted by one contment or that a MUST be reduced to a miniMum NOAA to be saved THROUGH operation of the reconnaissance or engineering anticipates that an applicant Will have proposed OTEC facility did NOT Appear hydrographic survey would be COMPLETED a tHOROUGH PRELIMINARY to be necessary if only-one application unnecessary in the case of a plantship design study, an economic analysis iN for an OTEC facility in a particular area application, and that change has been sufficient detail To prepare a program were pending before the AdminiStrator. made. A requirement to describe prospectus, and havE acquired NOAA concURS that this information is onshore vessel on/off loading facilities eNVironmental data sufficent for NOAA only neCessary uNdEr the Act when which are part of the OTEC proposal TO PREPARE a draft enviRonmental impACT competing OTEC facility applications has been added in response to. statement oN the propoSEd OTEC are received FOr a single designated comments received. operation by the time an application is application area. Accordingly, the 982.230 Operational information. submitted. requirement to provide that information Several commentors noted that The possibility of a two phase- has been moved to 981.290 and has emergency shutdown and evacuation application process in which general been made conditional on receipt of procedures for the OTEC facility or information would be provided initially, multiple applications for a specific plantship should be described in the to be followed later-in the review designated applIcatiON area. in which application. That requirement has been process with more dEtailed information. case NOAA must address the national added to the final regulations. was proposed by a commentor. interest criteria set forth in the Act when 981.240 Design information. One However, the Act requires the deciding among the compeTING commentor noted that the NPR did not Administrator of NOAA to deterMINE applications. contain any explicit requirement for an within 21 days oF receipt of an SeverAL coMmentors questioned the applicant to describe the proposed application whether or not it appears to requirement for information On the configurations of cold and warm ocean contain all oF the information necessary applicant's prior INVOLvement in similar water intake and discharge structure. to make a decision on LICENSE issuance. energy or product manufacturing While this section of the NPR inferred Further, tHE processing schedule activities requireD BY 1001.180(e)(7) of such a requirement it has been mandated by the Act requires that full the NPR and requested NOAA to explicitly stated in the final regulations. information on the OTEC pROPOSAL be consult with the DEpartment of justice 981.260 Environmental available at an early stage if the (DOJ) regarding the need for it in the information. Several changes have been deadlines for license issuance ARe to be context of antitrust review of an OTEC made in this section of the NPR on the met. ACCORDINGLY the phased approach licENSE application. N0AA has done so, basis of comments received. Section to provision OF application information and while DOJ concURS iN making the 981.260(a)(1) has been reworded to make has not beEN incorporated, into the FINAL provision of product pricing and fuel and It clear that the applicant must describe regulations. raw materials savings information the boundaries of the geographic area in The commentor who proposed the contingent UPON receipt of multiple which the proposed OTEC operation phased approaCH to provision of applications for a designated applicaTION would impact or be impacted by another information based it in part on the area. DOJ has requested that OTEC operation. Section 981.260(a)(4) concept of establishing a "PRIORITY Of information ON prior related activities be 6qhas been revised to make it clear that RIght" to a particular geograpHIC site For required of aLl applicants FOR use in the potential impacts of entrainment and an OTEC facility tHrough provision oF application antiTRUST review reQUIRED by impingement on biological communities Federal Register / Vol. 48. No. 147 / Friday, July 31, 1981 / Rlues and Regulations must be described. Section 981.260(a)(7) properly conduct its antitrust review of coastal State staus under 981.330(b) of has been clarified by noting that an OTEC license application. these rules relative to plantship archeological resources are among the Accordingly, the Department requested operations conducted on the high seas, special sites to e identified. Section assurance that the mechanism of that designation does not confer any 961.260(a)(12)(iii) has been modified to 981.90 of these regulations for seeking taxing power under the terms of section require a description of the applicant's additional informaion from the 403(b)(2) of the Act. proposed program to monitor the effects applicant would be available to cover 981.380 Steps in the voluntary of cold and warm water intakes as well that eventuality. NOAA has included Consolidated Application Review (CAR) as discharges. procedure to cover such situations process. Numerous commentors strongly 981.290 Publication of notice of and it will be available to the supported the CAR concept and its appliction: contents of notice: call for Department of Justics and other potential for streamlining the OTEC additional applications for OTEC involved government agencies, if license applicaion review process. facilities. This section has been necessary, provided good cause exists NOAA has left it essentiaily unchanged amended to require that the original for seeking the additional information. in these final rules. One commentor did applicant and all subsequent applicants 981.330 Adjacent Coastal States. A note, however, that, as worded in the for a designated application area submit number of comments were reveived on NPR, it did not appear to be available information on unit cost to the end user the adjacent coastal state designation for use where multiple applications had of produced electricity or producy and provisions of the proposed regulations. been reveived for the same designated on fuel or other raw material savings, One commentor suggested that the application area. Minor technical not later than 30 days after expiration of NOAA Adminstrator provids the actual changes have been made to allow for its the 90 day period for filing additional terms of a proposed license to the use in this circumstance. applications for a designated application governor of an adjacant coastal State for 981.390 Voluntary Nature of the area. As noted earlier this change has review prior to issuance of that governor CAR Process. One commentor requested been made so that such information is to had required specific terms and/or clarification of the impact of the CAR be submitted only when it is necessary conditions in the license to make it process on-agreements with agencies to a national interest determination consistent with the State's approved. other than NOAA reached prior to between competing applications for the Coastal Zone Management Plan A making applicaion for an OTEC license. same application area. request was made to antomatically This section has been amended to make 9981.320 Antitrust review. As designate the givernor of each adjacent clear that such agreements are not noted earlier in the discussion of coastal State as a "necessary party" in affected by an applicant's later decision changes make to 1001.180(e) of the the event a formal adjudicatory hearing to make use of the CAR process. NPR, NQAA has had additional became necessary during the license Another commentor requested discussions with the Department of review process it was also requested information on the status of an agency justice concerning the information that such a formal hearing other than NOAA which chose not to necessary for the antitrust review be held in the adjacent coastal State. participate in CAR. While NOAA will required by the Act and has modified NOAA views its relation with all encourage all involved agencies to that section of the final rules designated adjacant coastal States as participate, CAR is voluntary, and other accordingly. Section 981.320 has been one of continuing dialogue throughout Federal, State, or local agencies may modified to provide notics to the the license application review process. choose not to participate in it. Such a Attorney General if the NOAA Close consuitation will be maintained decision would have no impact on their Administrator does not accept the and the concerns of each adjacent existing statutory authority, or on Attorney General's recommendation on coastal State will be fully factored into NOAA's authority to issue an OTEC an application that may create a the licensing decision. Section license. situation inconsistent with the antitrust 981.580(f)(2)(i) has been amended to 981.440 Inter-agency CAR team laws. In response to one question clarify that the administrative law judge meeting. One commentor requested that reveived on the NPR, NOAA has asked in charge of the hearing will give special the meeting provided for in this section the Antitrust Division at the Department consideration to whether each adjacent of the NPR be held in a designated of Justice whether a mechanism exists coastal State should be a full party in adjacent coastal State. NOAA concurs for obtaining an opinion on the antitrust the hearing. If the issue requiring a in the suggestion and this section of the implications of an OTEC proposal prior formal hearing concerns one of the final rules provides for holding thef to making formal application to NOAA adjacent coastal States, the meeting in an adjacent coastal Sate, if it for a license. The Antitust Division has administrative law judge has sufficient is practicable to do so. indicated that such a procedure does flexibility to admit a state as a party to 981.460 Timely approval or denial exist and that a non-binding opinion in the hearing. Similarly, NOAA believes of applicatior for a license. In response the form of a "business review letter" that the administrative law judge has to a comment, NOAA has clarified this desbribing the Department's preliminary authority under 981.560(e)(14) to hold section to indicate that the license will views on antitrust issues may be part of the hearing in the reievant be issued within 30 days after a obtained by consuiting with the adjacent coastal State. favorable decision on the application is Division. The procedures for obtaining One commentor expressed concern made. such a review are contained in 28 CFR that designation as an adjacent coastal 981.470 Criteria for approval or 50.6. NOAA will assist potential State could somehow extend that State's denial. Several commentors noted that applicants in obtaining these views taxing power to include an OTEC this sectionof the NPR stated that the under the pre-application consulation plantship which did not operate in that Administrator "may" issue a license, provisions contained in 981.70 of these State's waters. Such a situation is rather than that he "shall" issue one if final regulations. impossible because such extraterritorial the criteria set out in the section are The Department of Justice noted that taxing authority is not granted the satisfied by the applicant. The it might require information beyond that States by section 403(b)(2) of the Act. permissive language is derived directly initially required by these regulations to Although a State might achieve adjacent from section. 101(c) of the Act and has 39392 Federal Register / Vol. 46. No. 147 / Friday, July 31, 1981 / Rules and Regulations been retained in the final regulations. district court action to revoke a license necessary due to the remote location of While NOAA has every intention to under this section exvept for "major" the licensed OTEC facility or plantship. issue licenses to qualified applicants in violations of license terms and The language of this section in the final timely fashion, other events could conditions. NOAA believes that the regulations has been changed to clarify intercede to make that impossibel-for difficulties in developing a regulatory that it relates to one or more observers instance a judicial order to delay definition of "major" under these at a given time. issuance of a license. circumstances outweigh the uncertainty The provision of 1001.530(e) of the 981.490 Candition precedent to a licensee will be subject to in NPR under which the Administrator issuance of license: Compliance with depending on the Administrator's would have reimbursed the licensee for conditions and prior approval of discretion not to seek court actions for reasonable costs directly related to the changes. Several commentors noted that insignificant violations of license terms quartering and maintaining of observers this section of the NPR did not provide a and conditions. Accordingly, no change on OTEC facilities or plantships has mechanism for routinely requesting has been made to this section in the been deleted from the final regulations. changes to the terms and conditions of final regulaions. NOAA does not expect Current Administration policy is to an issued OTEC license. NOAA concurs to seek license revocation unlese NOAA place the financial costs of necessary in the need for such a mechanism. believes a mojor violation, or a pattern regulation on the regulated industry Accordingly, a new 981.525, Review, of violations has occurred. itself, wherever fessible and modification and revision of license 981.560 Formal hearing appropriate. As we receive further terms and conditions, has been added to procedures. One commentor noted that guidance from the Administration on these final regulations. That section the requirement or 1001.560(1)(2) of the government cost recovery policy NOAA provides for processing of changes to NPR that the administrative law judge will clarify who will bear the cost of license terms and conditions upon issue a recommended desision as as soon obsevers. request of the licensee or upon the as practicable, but normally not later The observer provisions also have initiative of the Adiministrator, and also than 30 days after the conclusion of the been modified to help assure that for a periodic review by NOAA to formal hearing, was a tight time observer activityes are reasonable to determine of operational experience consttaint. NOAA recognizes this, but clarify that the Master or senior indicates the need for such changes. point out that the Act sets a deadline of operations personnel and not the Commentors requested that these 45 days after completion of hearings for observer are in charge of the safe procedures include procedural agencies other than NOAA to make operation of the OTEC facility or safeguards. Section 981.525 of these final their final views on the license plantship, and to protect confidential regulations includes such safeguards. applicaion known. Since the desision information that may be included in the 981.510 Duration of licenses and reached in a formal hearing may affect observer's reports. renewals. A commentor noted that the those views it is imperative that the V. Organisation of the Rules maximum duration of the initial license recommended decision be available as NOAA has organized these was set at 25 years in the NPR and soon as possible after the hearing is regulations so that a protential applicant requested that provision by made for a concluded. Accordingly the 30-day can readily find the informaion relevant longer duration. The 25-year maximum provision remains the same in these to making application for an OTEC is specified in the Act and has been final regulations. license. The provisions have been retained in the final regulations. 981.570 Ex parte communications. grouped into subparts, as follows, in an 981.520 Terms and condutions of a Several changes have been made in this effort to consolidate informaion on license. One commentor requested an section in response to comments procedures and information opinion as to whether or not the coastal received on the NPR. Section 981.570(c) requirements and to assist a potential zone consistency provisions of has been revised to make its landguage applicant in orderly development of the 981.520(c) superseded those 15 CFR conform to section 554(d) of the application materials. 930, Subpart D. NOAA believes that the Administrative Procedures Act, A Subpart A-Genernl Program provisions in this section supersede definition of the terms "agency Requirements. This subpart describes those of 15 CFR 930, Subpart D, only to representative" has been added to the purpose and scope of 15 CFR Part the extent that there are actual conflicts 981.570(e), which is the first place that 981 provides definitions of terms used between the Act and Coastal Zone it appears in the regulations. The throughout the regulations and specifies Management Act statutory exemption which would have allowed who must (and who is not required to) requirements. Where the statutes can be the agency representative to participate apply for an OTEC license. The implemented compatibly, we believe no in the initial decional process which procedures for application, amendment supersession need be found. developed the record which was the of an application, and withdrawal or A number of commentors requested subject of the formal adjudfcatory termination of a license applicaion are that the wording of 1001.520(h) of the regulations as recommended in given. The applicaion fee and method NPR related to diligence be changed to comments of the Administrative of payment are specified. allow for reasonable delay resulting Conference of the United States. Subpart B-Information to be form "unforessen" circumstances rather 981.630 Observers. One Submitted with Application. This than from "unforeseeable" commentor interpreted this section of subpart specifies what information the circumstances. NOAA concurs in this the NPR as requiring that applicant must provide with the OTEC approach and the final regulations have accommodations dedicated to observers license applicaion. The required been amended accordingly. However, be included in the initial design of the informaion relates to the siting, design, the "unforeseen" circumstances still OTEC facility or plantship. This was not construction and deployment of the- will be evaluated form the prospective of intended, and the final regulations have proposed OTEC facility or plantship. a reasonable person in the position of the been amended to make clear that the Informaion on the financial situation licensee. requirement is to provide temporary and organization of the applicant is 981.550 Suspension, revocation, accommodations for observers if specified. Environmental information termination, relingquishment or surrender of a license. One commentor requested that NOAA not seek Federal Federal Register / Vol. 46, No. 147 / Friday, July 31, 1981 / Rules and Regulations 39393 necessary to evaluate potential impacts of the proposed OTEC operation is prescribed. Information necessary to assure that the applicant's proposal complies with federal laws and regulations other than the Act is also specified. Subpart C--License Application Review Procedures. This subpart sets out the steps in this OTEC application review process which are mandated by the Act. The steps in the voluntary Consolidated Application Review {CAR} process which provides the applicant with the option of requesting a more integrated, coordinated review process than the minimun provided for in the Act are also prescribed. Subpart D--Criteria for Approval or Denial of Application and Establishment of License Terms and Conditions: Renewal, Transfer, Modification, Revision, Suspension, Revocation and Termination. This sub- part sets out the criteria which the NOAA administrator will use in reaching the decision to issue or deny a particular OTEC license application. The criteria this Administrator will use for deciding among multiple applications for the same OTEC sits area are also prescribed. Criteria for establishing licens terms and conditions are set out. This subpart also provides for transfer and renewal of licenses and prescribes modification, revision, suspension. Subpart E--Formal Hear- ing Procedures. Under certain circumstances a formal adjudiciatory hearing on the record may become necessary as part of the OETC enforcement programs. This subpart sets forth the basic procedures to be followed in such hearings. Subpart F-- Enforcement Procedures. This subpart prescribes the administrative procedures which will be followed in OTEC enforcement proceedings, including those related to license suspension, termination or renovation proceedings to issuance of compliance orders and to assessment of civil penalties in connection with enforcement activities. This subpart also establishes rules concerning placement of authorized Federal observers on and in OTEC facilities and plantships, and desc- ribes how a person wishing to sue an alleged violator or the Administrator must give advance notice of the intended lawsuit. VI. Other Actions Associated With These Regulations A. Classification under Executive Order 12291 pf Febuary 17, 1981. The NOAA Administrator considers these regulations to be major with respect to the criteria of Executive Order 12291 of Febuary 17, 1981, because they will foster and govern development of the United States commercial OTEC industry. NOAA has prepared and transmitted to the Office of Management and Budget (OMB) a final Regulatory impact Analysis as specified by section 3 of EO 12291. The Administrator of NOAA has determined that these final rules are clearly within the authority delegated by law and consistant with Congressional intent. The rules are authorized or mandated by sections 102(a), 102(d) (2), 102(h), 106, 110(3), 112(a), 114(b)(2), 303(a) and other sections of the Act Congressional intent is generally apparent in the statement of purposes of the Act, which is restated in relevant part at (981.20) of the final regulations. B. Regulatory Impact Analysis NOAA has prepared a final Regulatory Impact Analysis. This analysis, which examines the potential economic impact of the proposed regulations is available to all interested parties. The analysis examines the various alternatives NOAA considered in preparing the regulations considers the economic benefit and cost implications of the alternatives and explains NOAA's reasons for making the choices reflected in these regulations. The analysis in compliance with the Regulatory Flexibility Act. Pub. L. 96-354. Copies of the analysis may be obtained by writing to the Director. NOAA Office of Ocean Minerals and Energy, at the address specified in the ADDRESS section of this preamble. C. Summary of Final Regulatory Flexibility Analysis Because of the large size and cost of commercial OTEC projects, the primary involvement of small business concerns in the OTEC industry is expected to be as contractors or subcontractors, rather than sole owners or operators of OTEC facilities or plantships. Only one license, obtained by the owner is required. The general regulatory approach selected by NOAA for these regulations was designed to provide the greatest flexibility for and to minimize any adverse economic impact on any entity--large or small--which may be involved in OTEC development. The regulations do not impose any reporting, record keeping, or other compliance requirements on small organizations. Copies of the combined final Regulatory Flexibility Analysis and final Regulatory Impact Analysis may be obtained by writing to the Director, NOAA Office of Ocean Minerals and Energy, at the address specified in the Address section of the preamble D. Paperwork Reduction Act. Pub. L. 96-511 Because of the limited number of persons initially subject to these regulations (NOAA anticipates a maximum of 3 OTEC license applications in the first year of the program), NOAA believes they do not contain a "collection of information" requesdt within the meaning of 44 U.S.C. 35022(4) and 3502(11), Accordingly, 981.155 of these regulations contains a statement that the information requested is not subject to the requirements of 44 U.S.C. 3507. Section 117 of the Act requires the NOAA Administrator to review these regulations periodically at intervals of not more than every three years, and to revise them as necessary based on that review. During the review, or earlier if necessary, NOAA will review its projections of the expected number of license applications and take any actions necessary under the Paperwork Reduction Act on that basis. E. Environmental Impact Statement The NOAA Administrator considers issuance of final regulations implementing the Act to be a major Federal action significantly affecting the quality of the human environment. Accordingly, NOAA has prepared a Final Environmental Impact Statement {FEIS} under section 102(2)(C) of the National Environmental Policy Act of 1969 as part of this rulemaking. The FEIS has been filed with the Environmental protection Agency. Copied may be obtained by writing to the Director, NOAA Office of Ocean Minerals and Energy, at the address specified in the Address section of this preamble. For the reasons set out int he preamble. Title 15 of the Code of Federal Regulat5ions is amended by adding a new Part 961, Ocean Thermal Energy Conversion Licensing Program. The text of the final rules follows. 39394 Federal Register / Vol. 46. No. 147 / Friday, July 31, 1981 / Rules and Regulations Dated; July 24, 1981. John v. Byrne. Administrator National Oceanic and Atmospheric Administration. PART 981--OCEAN THERMAL ENERGY CONVERSION LICENSING PROGRAM Subpart A--General Program Requirements Sec. 981.10 What are the Ocean Thermal Energy Conversion Program Regulations? 981.20 Purpose of the OTEC licensing regulations. 981.30 Scope of the OTEC licensing regulations. 981.40 Definitions. 981.50. Who must apply for an OTEC license (and) who does not need one? 981.60 Federal applications. 981.70 Pre-application constitution. 981.80 How to apply for an OTEC license 981.90 Provision of additional information. 981.100 Confidentiality of information. 981.110 Amendment of an application 981.120 Termination of processing and withdrawal of an application. 981.130 Application fees. 981.140 Clerk docket, and record of application proceeding. 981.150 Public inspection and copying. 981.155 Compliance with Paperwork Reduction Act: 981.158 Computation of time periods for filing document. Subpart B--Information to be Submitted With Application 981.160 Why is this information required? 981.170 Request for use of the Consolidated Application REview (CAR) process - 981.180 Information about the applicant and its sifbanes. 981.190 General information on the OTEC facility or plantship. 981.200 Requested duration of license. 981.210 Compliance with other Federal laws and regulations. 981.220 OTEC side information. 981.230 Operational information. 981.240 Design information. 981.250 Construction and deployment procedures. 981.260 Environmental information. Subpart C--License Application Review Procedures 981.270 What is the license application review process? 981.280 NOAA review for completeness. 981.290 Publication of notice of application contents of notices call for additional applications for OTEC facilities. 981.300 Other Federal agencies and departments. 981.310 EIS for each application. 981.320 Antitrust review 981.330 adjacent coastal sisters. 981.340 Informal public hearings on license application. 981.350 Formal hearings on material factual issues. 981.360 Timely conclusion of public hearings. Sec. 981.370 Timely issuance of draft and final EIS's on the application. 981.380 Steps in the voluntary Consolidated Application Review (CAR) process. 981.390 Voluntary nature of the CAR process. 981.400 Effect of Joint Agreement on authorities. 981.410 Request for designation of Federal CAR team members. 981.420 Request for designation of State and local CAR team members 981.430 Development of Joint Agreement by CAR teams. 981.440 Inter-agency CAR team meeting. 981.450 Implementation of the CAR schedule. Support D--Criteria for Approval or Denial of Application and Establishment of License Terms and Condit- ions Renewal, Transfer, Modification, Revision, Suspension, Revocation, Termination, Relinquishment, and Surrender. 981.460 Timely approval or denial of application for a license and issuance of a license. 981.470 Criteria for approval or denial. 981.480 Multiple applications. 981.490 Condition precedent to issuance of licenses: Compliance with conditions and prior approval of changes. 981.500 Contents of licenses. 981.510 Duration of licenses and renewals. 981.520 Terms and conditions of a license. 981.525 Review modivication and revision of license terms and conditions. 981.530 Renewal of a license. 981.540 Transfer of a license. 981.550 Suspension revocation termination, relinquishment, or surrender of a license. Subpart E--Formal Hearing Procedures 981.560 Formal hearing procedures. 981.570 Ex parts communications. Subpart F--Enforcement Procedures. 981.580 General. 981.590 Assessment procedures. 981.600 Hearing and appeal procedure. 981.610 License sanctions. 981.620 Compliance orders. 981.630 Observers. 981.640 Advance notice of civil actions. Subpart G--Upper Limits on the Number or Total Capacity of OTEC Facilities and Plantships To Be Licensed Under This Part (Reserved) Subpart H--OTEC Site Evatuation and Preconnection Testing Regulations (Reserved) Subpart I--Procedures for Meditation of Disputes Among Licenses Regarding totarterence Between OTEC Facilities or Plantships (Reserved) Authority: Ocean Thermal Energy Conversion Act of 1980. Pub. L. 96-320. 94 Stat. 974(42 U.S.C. 9101 at seq). Subpart A--General Program Requirements 981.10 What are the Ocean Thermal Energy Conversion Program Regulations? (a) Coverage. These regulations implement NOAA's responsibilities under the Ocean Thermal Energy Conversion Act of 1980. The regulations provide the procedures and information necessary to apply to NOAA for a license for the ownership, construction, and operation of ocean thermal energy conversions (OTEC) facilities and plantships. They also establish a voluntary consolidated process for review of license applications by NOAA and other Federal, State, and local government entities: state the criteria which will be used for issuance or denial of a license prescribe criteria for establishing license terms and conditions prescribe procedures for enforcement of the Act and this Part and for renewal, transfer, modification, revision, suspension, revocation, termination, relinquishment, or surrender of a license. 981.23 Purpose of the OTEC licensing regulations: The regulations in this Part carry out the purposes of the Act which include: (a) Authorize and regulate the construction, location, ownership, and operation of OTEC facilities connected to the United States by pipeline or cable, or located in the territorial seas of the United States. consistent with the Convention on the High Seas, and general principles of international law; (b) Authorize and regulate the construction, location, ownership, and operation of OTEC plantships documented under the laws of the United States, consistant with the Convention on the High Seas and general principled of international law. (c) Authorize and regulate the construction, location, ownership, and operation of OTEC plantships of United States citizens consistant with the Convention on the High Seas and general principles of international law: (d) Establish a legal regime which will permit and encourage the development of OTEC as a commercial energy technology; (e) Provide for the protection of the marine and coastal environment and consideration of the interests of ocean users to prevent or minimize any adverse impact which might occur as a consequence of the development of such OTEC facilities or plantships: (f) Protect the interests of the United States in the location, construction, and Federal Register / Vol. 48. No. 147 / Friday, July 31, 1981 / Rules and Regulations 39395 operation of OTEC facilities and plantships: and (g) Protect the rights and responsibilities of adjacent coastal States in ensuring that Federal actions are consistent with approved State coastal zone management programs and other applicable State and local laws. 981.30 Scope of the OTEC licensing regulations. (a) Subpart A of Part 981 contains definitions and basic procedures related to any application for a license for an OTEC facility or plantship, including application fees and procedures for termination or withdrawal of an application. (b) Subpart B of Part 981 prescribes the information which must be included in a license application to enable the Administrator to make the determination required by the Act as conditions precedent to issuance or denial of an OTEC license. (c) Subpart C or Part 981 prescribes license application review procedures including the Consolidated Application: Review (CAR) process which will be use by NOAA and, on a voluntary basis by the applicant and those other Federal State, and local government entities with authority over any aspect of the OTEC operations proposed in an application (d) Subpart D of Part 981 contains the criteria upon whith the Administrator will base the decisions to issue or deny an OTEC license, including the criteria, which will be used to decide among multiple applications for the same designated application area. This Subpart also prescribes criteria for establishing license terms and conditions, and for renewal, transfer, modification, revision, suspension, revocation, and termination of a license. (e) Subpart E of Part 981 prescribes the procedures which will be used by the Administrator to conduct any formal hearings under this Part. (f) Subpart F of part 981 sets forth the administrative procedures which will be used for enforcement proceedings under the Act and this Part. 981.10 Definitions. For the purposes of this part the following terms have the following meanings; "Act" means the Ocean Thermal Energy Conversion Act of 1980 (Pub.L. 96-320; 94 Stat. 974; 42 U.S.C 9101 of seq.); "Adjacent coastal State" means any coastal State which is required to be designated as such by 981.330(a) of this part or is designated as such by the Administrator in accordance with 981.330 (b) of this part: "Administrator" means the Administrator of NOAA or a person to whom appropriate authority has been delegated: "Affiliate" means any person. (A) in which the applicant or licensee owns or controls more than 5% interest in the applicant or licenses, or (C) which is under common ownership or control with the applicant or licensee: "Antitrust laws" include the Act of July 2, 1890, as amended, the Act of October 15, 1914. as amended, and sections 73 and 74 of the Act of August5 27, 1894. as amended: "Application" means any application submitted under this Part (A) for issuance of a license for the ownership, construction, or operation of an OTEC faciility or plantship: (B) for transfer or renewal of any such license, or (C) for any substantial change in any of the terms and conditions of any such license: "CAR: means Consolidated Application Review process described in subpart C of this part: "Cleanup" means removal of pollutants from the water and shorelines or the taking of such other aciton as may be necessary to minimize or mitigate damage to the public health or welfare, including, but not limited to, fish shellfish, wildlife, public and private propery, shorelines, and beaches; "Coastal State" means a State in, or bordering on; the Atlantic, Pacific or Artic Ocean, the Gulf of Mexico, Long Sound, or one or more of the Great Lakes: "Construction" means any activities conducted at sea to supervise, inspect, actually build, or perform other functions incidental to the building, repairing, or expanding of an OTEC facility or plantship or any of its components, including but not limited to, piledriving, emplacement of mooring devices, emplacement of cables and pipelines, and deployment of the cold waterpipe and alterations, modifications, or additions to an OTEC facility or plantship: "Controlling interest" means a direct or indirect legal or beneficial interest in or influence over another person arising through ownership of capital stock, interlocking directorates or officers, constractual relations, or other similar means, which substantialy affect the independent business behavior of such person: "Designated application area" means the projected area or areas in which the OTEC activities of the applicant might impact so as to significantly degrade the operation of another OTEC facility or plantship, and in which the operation of another OTEC facility or plantship might impact so as to significantly degrade the OTEC operation proposed by the applicant: "EIS" means an environmental impact statement prepared under section 102(2)(C) of the National Environmental Policy Act of 1969(42 U.S.C. 4332(2)(C): "Facility" means an OTEC facility; "Governor" means the Governor of a State or the person designated by law to exercise the powers granted to the Governor pursuant to this Part: "High seas" means that part of the oceans lying seaward of the territorial sea of the United States and outside the territorial sea, is recognized recognized by the United States, of any other nations: "Licensee" means the holder of a valid license for the ownership, construction, or operation of an OTEC facility or plantship that was issued, transferred, or removed pursuant to this Part: "Major component" means any component of an OTEC facility or plantship with a value exceeding $500,000; "NOAA means National Oceanic and Atmospheric Administration; "OTEC" means ocean thermal energy conversion: "OTEC facility" means any facility which is standing or moored in or beyond the territorial sea of the United States and which is designed to use temperature differences in ocean water to produce electricity or another form of energy capable of being used directly to perform work and includes any equipment installed on such facility to use such electricity or other form of energy to produce, process, refine, or manufacture a product, and any cable or pipeline used to deliver such electricity, fresh water, or product to shore, and all other associated equipment and appurtenances of such facility, to the high-water mark. If part of the OTEC facility is built on land, the definition includes that poriton of the warm water intake structure, cold water intake structure, effluent discharge structure, and any other parts of the facility, located seaward of the high-water mark; "OTEC plantship" means any vessel which is designed to use temperature differnces in ocean water while floating unmoored or moving through such water, to produce electricty or another form of energy to capable of being used directly to peform work, and includes any equipment installed on such vessel to use such electricity or 33396 Federal Register /Vol. 48. No. 147/ Friday, July 31, 1981. / Rules and Regulations other form of energy to produce, process, refine, or manufacture a product; and equipment used to transfer such product to other vessels for transportation to users, and all other associated equipment and appurtenances of such vessel; "Person" means any individual (whether or not a citzen of the United States), any corporation, partnership, association, or other entity organized or existing under the laws of any nation, and any Federal State, local or foreign governmnet or any entity of any such government: "Plantship" means an OTEC plantship; "Pollutant" means (A) oil of any kind or in any form, including, but not limited to, petroleum, fuel oil, sludge, oil refuse, oil mixed with wastes; (B) dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemcial wastes, biological materials, radioactive materials, temperature change, wrecked or discarded-equipment, rock, sand, ceilar dirt and industrial, municipal and agricultural waste discharged into water;and (C) hazardous substances as that term is defined in section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980(Pub. L. 96-510); "Pollutant discharge" means, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying, or dumping of pollutants; "Significant contract" means any contracy in an amount exceeding five hundred thousand dollars ($500,000); "State" means each of the several Commonwealth of Puerto Rico; American Samoa, the United States, Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession over which the United States has jurisdiction; "Test platform" means any floating or moored platform, barge, ship, or other vessel which is designed for limited-scale, at-sea operation in order to test or evaluate-the-operation of components or all of an OTEC system and which will not operate as an OTEC facility or plantship after the conclusion of such tests or evaluation and "United States citizen" means (A) any individual who is a citizen of the United States by law, birth, or naturalization: (B) any Federal State, or local government in the United States, or any entity of any such government or (C) any coporation, partnership, association, or other entity, organized or existing under the laws of the United States, or of any State, which has as its president or other executive officer and as its chairman of the board of directors, or holder of similar office, an individual who is a United States citizen and which has no more of its directors who are not Unites States citizens that constitute a minority of the number required for a quorum necessary to conduct the business of the board. 981.50 Who must apply for an OTEC license (and who does not need one)? (a) OTEC facilities. No person may engage in the ownership, construction, or operation of an OTEC facility which is: (1) Documented under the laws of the United States; or (2) Located in the territorial sea of the Unites States; or (3) Connected to any State by pipeline or cable; except in accordance with a license issued by a foreign nation whose licenses are found by the Administrator, after consultation with the Secretary of State, to be compatible with the licenses issured purusuant to this part. (c) Activites which do not require a license; The requirements of this section to obtain an OTEC license do not apply to the following activies: (1) Ownership, construction, or operation of any ocean thermal energy converstion facility or plantship which the Secretary of Energy has designated in writing as a demmonstration project for the developement of alternative energy sources for the United States which is conducted by participated in, or approved by the Department of Energy, for so long as the Secretary of Energy maintains such designation in effect. The Secretary of Energy, after consultation with the Administrator, will require such demonstration projects to abide by as many of the substantive requirements of Title I of the Act as he deems to be practiable without damaging the nature of unduly delaying such projects: (2) Ownership, construction, or operation of any test platform which will not operate as an OTEC facility or plantship after conclusion of the testing period: (3) OTEC construction activites which are conducted on land or in a shipyard: and (4) Manufactures or supplying of components for construction of an OTEC facility or planship unless such activity takes place seaward of the highwate mark. 981.80 Federal applications The application filed with the Administrator constitutes an application for all Federal authorizations requred for ownership, construction, and operation of and OTEC facility or plantship, except for authorizations required by documentation, inspectin, certification, construction, and manning laws and regulations administered by the Secretary of the department in which the Coast Guard is operating and application to the Maritime Administration for financial assistance under Title XI of the Merchant Marine Ace of 1938. Procedures for review of the application by Federal agencies and departments (other than the Coast Guard) are set forth in Subpart C of this part. 981.70 Pre-application consultation. (a) Consultation. If requested, the Administrator will consult with any prospective applicant to assist the applicant in properly preparing the application and in contacting other Federal and State agencies involved in the application review process to discuss the prospective application. (b) Request. A prospective applicant who wishes a pre-application consultation in accordance with this section should make such request in writing to the Director, Office of Ocean Minerals and Energy, NOAA, Room 410, Page 1 Building, 2001 Wisconsin Avenue, N.W. Washington, D.C. 20235. 981.80 How to apply for an OTEC license. (a) Form. Each application must be in writing and must include the information specified in Subpart B of this part in the order specified. (b) Number of copies. 45 copies of each application must be submitted. (c) Where to file the application and all related documents. Application and all related documents shall be filed with the Administrator of NOAA in care of the Director, NOAA Office of Ocean Minerals and Energy, Room 410, Page 1 Building, 2001 Wisconsin Avenue, N.W.-Washington, D.C. 20235. (d) Signature. (1) Who. Each application for an OTEC license submitted under this part shall be signed by the applicant as follows: (i) For a corporation: by a principal executive officer of at least the level of vice-president: federal register/ vol. 48, no. 147/ friday, july 31, 1981/ rules and regulations 39297 (ii) for a partnership or sole deadlines prescribed in subpart c of (3) (i) information subject to a request proprietorship: by a general partner or this part. if the adminsitrator for confidential treatment must be the proprietor, respectively; determines that an unmet requirement segregated from information for which (iii) for a federal, state, or local for supplemental information is confidential treatment is not being government in the united states, or any material, the administrator may requested, and each page (or segregable sentity of any such government by either disapprove the application or suspend portion of each page) subject to the a principal executive officer or ranking the application pending a determination request must be clearly marked with the slected official; or that processing can be resumed. the name of the person requesting (iv) for an assocation or other enntity: period of any suspension shall not be confidential treatment, the name of the by a principal executive officer. counted in determining the dates of the applicant or licensee, and an identifying (2) verification. each application deadlines prescribed in subpart c of legend such as "proprietary shall contain a statement at the end of this part. information" or "confidential treatment the application subscribed and sworn to (d) copies. 45 copies of additional requested." where this marking proves before a notary public that the information required under this section impracticable, a cover sheet containing individual who signed the application must be submitted unless the the identifying names and legend must has read it and that its contents are true administrator determines otherwise be securely attached to the compliation to the individual's best knowledge and of information for which confidential 981.90 provision of additional 981.100 confidentality of information treatment is requested. each copy of the information. (a) purpose. this section provides a information for which confidential (a) supplemental documents. the procedure by which persons submitting treatment has been requested must be administrator may require, by written information pursuant to this part may cross-referenced to the appropriate notice to the appilicant, that the request that certain information not be section of the application or other applicant file as supplement to the subject to public disclosure. document. all information for which application any analysis, explanation or (b) written requests for confidential confidential treatment is requested detailing of information in the treatment. pertaining to the same application or application or any other information (1) any person who submits any other document must be submitted to determined by the administrator to be information pursuant to this part, which noaa in a package separate from that required to review or process the information is considered by him to be a information for which confidential application. trade secret, or commerical, or financial treatment is not being requested. (b) other federal and state requests. information which is privilaged or (ii) each copy of any application or any federal or adjacent coastal state confidential, may request, that the other document with respect to which department or agency may file with the information be given confidential confidential treatment of information administrator a request or treatment. has been requested must indicate, at recommendation for further information (2) (i) any request for confidential each place in the application or related to its authorization(s) required treatment of information document where confidential for ownership, construction, or (a) should be submitted at the time of information has been deleted, that operation of the proposed otec facility submission of the information confidential treatment of information or plantship. requests and (b) should state the period of time for has been requested. recommendations received by the which confidential treatment is desired (iii) with respect to information administrator within 30 days after (e.g. until a certain date, or until the submitted as part of an application notice of the initial application has been occurrence of a certain event, or forty-five copies of the information for published in the federal register will be permanently); which confidential treatment is fully considered before any final (c) must be submitted in writing and requested must be submitted. determination is made to require (d) must include the name, mailing (iv) normally, noaa will not make a additional information of the applicant address, and telephone number of an determination as to wheter confidential requests and recommendations must agent of the submitter who is authorized treatment is warranted until a request contain a brief statement of the need for to receive notice of requests for for disclosure of the information is additional information, including the disclosure of such information pursuant received. however on a case-by-case nature of any safety, health. to paragraph (d) of this section basis the administrator may decide to environmental, economic, or other (ii) if information is submitted to make a deternination in advance of a legitimate concerns. noaa without an accompanying request for disclosure where it would (c) time limits. in exercising the request for confidential treatment, the facilitate noaa's obtaining voluntarily- authority to require supplemental notice referred to in paragraph (d) (2) of submitted information (rather than information under this section, the this section need not be given. if a information required to be submitted administrator may specify a reasonable request for confidential treatment is under this part). by which an applicant must meet the received after the information itself is (c) substantiation of request for requirement. if an application states that as are administratively practicable to confidential treatment. required information is not yet available associate the request with copies of the (1) any request for confidential but will be furnished at a later date, the previously submitted information in the treatmennt may include a statement of administrator may specify a reasonable files of noaa and the federal and state the basis for believing that the time by which the information must be agencies to which noaa distributed the information is deserving of confidential provided. if any requirement is not met information. however, noaa cannot treatment which addresses the issues by a time fixed in accordance with this assure that such efforts will be effective relevant to a determination whether the paragraph, the administrator shall in light of the prior distribution to information is a trade secret, or determine whether compilance with the federal and state agencies and the commerical or financial information requirement is material to processing of possibility of prior disclosure of the which is privileged or confidential. to the application within the time. information. the extent permitted by applicable law part or all of any such statement. 39398 Federal Register Vol. 46. No. 147 / Friday; July 31. 1981 Rules and Regulations submitted will be treated as confidential (A) Is strongly encouraged to deliver (A) The basis for the Administrator's if so requested by the person requesting to N0AA a written statement determination; confidential treatment. Any such addressing the issues listed in paragraph (B) That the Administrator's statement for which confidential- (c)(2) of this section. describing the basis determination constitutes final agency treatment is requested must be for believing that the information is action on the request for confidential segregated. marked. and submitted in deserving,of confidential treatment. if treatment; accordance with the procedures such a statement was not previously (c That such final agency action may described in paragraph (b)(3) of this. submitted: be subject to judicial review under section. (B) Is strongly encouraged to deliver Chapter 7 of title 5, United States Code. (2) Issues addressed in the statement to- NCAA an update of or supplement to and- should include: any statement previously submitted (D]) That. except as otherwise (i) The commercial or financial nature under paragraph (c) of this section: and provided by paragraph (d)(7)(ii) of. this of the- information: (c) May present to the Administrator. section. on the fourth working-day after (ii) The nature and extent of the In such forum as the Administrator issuance of the notice described in this competitive- advantage enjoyed as a deem appropriate (such as by . paragraph (d)(7)(i) the Administrator result of possession. of the information telephone or in an informal conference), will make the information available to (iii) The nature and extent of the such person's arguments a the person-who requested disclosure competitive which would result harm disclosure- of-the information: and unless NOAA has first been notified of from public- disclosure of the (iv) Inform such person that the the filing- of an action in a Federal court- information; burden is on him to assure that any to obtain judicial review of the (iv) The extent to which the response to the notice delivered to determination.,and the court has- issued information has been disseminated to N0AA within the time specified in the an appropriate order preventing. or employees and. contractors of the- person notice. limiting disclosure. submitting the information (3) To the extent permitted by (ii).The disclosure of information (v) The extant to, which. persons other applicable law, part or- all of any than the person-submitting the statement submitted in response to any described in paragraph (e) of this information possess. orhave access to,- notice issued under paragraph (e)(2) will section will be subject to the additional the same information and - be treated as confidential- if so requested standards and procedures for disclosure (vi) The nature of the measures which by the person submitting the response. set forth in that paragraph. For example. have been and are being taken- to, Any such response for which the notice under paragraph (d) (2( of this protect the information from disclosure confidential treatment is requested must section may be- omitted. or the time (d) Requests for-disclosure. be segregated. marked and submitted in period allowed for response to that (1) Any request for disclosure of accordance with the procedures. notice may be.very short. if the information submitted. reported or- described in paragraphs (b)(3)(i) and Administrator makes an appropriate. collected pursuart to this-Part shall be (b)(3(ii)'of this section. determination under paragraph (e)(1) of' made in accordance with 15 cfr 903.71. (4) Upon the expiration of the time: this section that the delay resulting from (2) Upon receipt of a request for- following the procedures of this allowed for response under paragraph disclosure of information for which (d)(2) of this section, or sooner if - paragraph (d) would be detrimental to confidential treatment has been- authorized under paragraph. (e) of this the public health or safety or the requested. the adminstrator section the administrator will environment. immediately will issue. notice by an-, determine. in consultation with this' (a) NOAA will keep a. record of the expeditious means (such as by NOAA Office of General Counsel. date any-notice is.issued. and of the telephone; confirmed by certified or whether confidential treatment is date any response is received. by registered maii. return receipt warranted based on the information NOAA under this paragraph (d). requested), of the request for disclosure thev available to NOAA.. (9) In all other respects, procedures to the person who requested (5) -If the person who requested for handling requests for records confidential treatment of the confidential treatment waives or containing information submitted to, information or to the designated agent withdraws- that request. the reported to. or collected by. the The notice also will: Administrator will proceed with Administrator pursuant to this Part will (i) Inquire whether such person: appropriate disclosure of the be in accordance with.15 CYR Part 903. continues to maintain the request for information: For example. if 10 working days have confidential. treatment. - (6 If. the Administrator determines passed after the receipt of a request for (ii) Notify. such person of the date- that confidential treatment-is warranted. disclosure and despite the exercise of (generally, not later than the close of he will so notify the person requesting due diligence by the agency, the business on- the fourth working- day after confidential treatment, and will issue an Administrator-cannot make a issuance of the notice), by which the initial denial of the request for determination as to. whether confidential person is strongly encouraged to deliver disclosure: of records in accordance with treatment is warranted. the to NOAA a written statement that this is CFR 903.8, Administrator will issue appropriate person either- (7)(i) If 'the Administrator determines notice in accordance with 15 Cfr (A) Waives or withdraws the request. that confidential treatment is not 903.8(b)(5). for confidential treatment in hid. or in warranted for part or all of the (e) Special limitations on disclosure part: or information. the Administrator of certain information. Any information (B) Confirms that the request! for immediateiy will issue notice by an submitted to. reported to. or coilected by confidential treatment is maintained. expeditious means. (such as by. the Administrator under this Partwhich (iii) Inform such. person that by such telephone, confirmed by certified or is exempt from disclosure pursuant to date as the Administrator specifies registered mail. return receipt section 552(b)(4) of Title 5. United States (generally, not later than the close of requested). to the person who requested Code (the section of the Freedom of business on the fourth working day after confidential treatment. The. notice will information Act relating to trade secrets issuance of the notice), the person: state: and commercial or financial information federal register/vol. 46, no. 147/friday, july 31, 1981/rules and regulations 39399 which is privileged or confidential), will or confidential shall not be disclosed date of the first public hearing held by not: except in the limited circumstances NOAA on the license application in (1) be publicly disclosed by the provided by section 112 of the act, and accordance with 981.340 of this part. administrator or by any other officer or 981.100 (d) and (e) of this part; and (3) a final payment of fifty thousand employee of the united states, unless (4) a request that all copies of the dollars ($50,000.00) must be submitted the administrator has; information be returned to NOAA for not later than 45 days after notice of (i) determined that the disclosure is secure storage or disposal promplty completion of public hearings on the necessary to protect the public heatlth or after the federal or state department or application is published in the federal saftety or the environmental against an agency determines that it no longer register in accordance with 981.360 of unreasonable risk of injury, and needs the information for its official use. this part. the administrator will not (ii) nofified the person who provided 981.110 amendmennt of an application issue a license under this part unless the the information 10 working days before (a) requirements to amend. if entire application fee has been paid. the disclosure is to be made unless the information in an application becomes (b) effect of withdrawal or delay resulting from such notice would materially inaccurate or incomplete termination of application. withdrawl be detrimental to the public notice would after it is filed but before the license of the application by the applicant or safety or the environment, or application proceeding is terminated. termination of the application (2) be otherwise disclosed except; the applicant must promptly file an proceedings by the administrator will (i) (a) to other federal and adjacent amendment furnishing the corrected or reduce the application fee due to NOAA coastal state government departments additional information. forty-five copies as follows: and agencies for offical use. of the amendment must be submitted to (1) if the application is withdrawn or (b) to any committee of the congress the administrator: terminated prior to publication in the of appropriate jurisdiction, or. (b) effect of amendment. if the federal register of notice of receipt of (c) pursuant to court order, and administrator determines that any an application which appears to be (ii) when the administrator has taken amendment constitutes a major and complete in accordannce with 981.290 appropriate steps to inform the recipient substantial change to the applicant's of this part; the applicant will not be of the confidential nature of the original proposal, the administrator liable for the additional paymennt of one information. may; hundred thousand dollars ($100,000.00) (f) direct submissions of confidential (1) suspend the time deadlines (2) if the application is withdrawn or information. if any person (for example, prescribed in subpart c of this part for terminated before the date of the first an affliate) has reason to believe that it processing of an application pending public hearing held by NOAA on the would be prejudiced by furnishing review of the amendment; or application in accordance with 981.340 information required from it to the (2) require the applicant to commence of this part, the applicant will not be applicant or licenses, such person may a new license application proceeding. liable for the final payment of fifty file the required information directly 987.120 termination of processing and thousand dollars ($50,000.00) with NOAA. information for which the (a) an applicant may withdraw an (c)payment the fees assessed under person requests confidential treatment application at any time before the this section must be made payable to must be segregated, marked, and license application proceeding is the "natural oceanic and atmospheric submitted in accordance with the terminated by delivering or mailing administration u.s. departmennt of procedures described in paragraph (b) (3) written notice of withdrawal to the commerce." of this section. administrator. 981.140 clerk, docket, and record of (g) protection of confidential (b) the administrator will terminate a application proceeding. information transmitted by NOAA to proceeding if: (a) the mailing address for the clerk other agencies. each copy of (1) all applications area withdrawn in each license application proceeding information for which confidential before the decision approving or is: otec docket clerk, office of ocean treatment has been requested which is denying them is issued: or minerals and energy, national oceanic transmitted by NOAA to other federal (2) the applicant after written notice and atmospheric administration., room and adjacent coastal state government by the administrator pursuant to 410, page i building, 2001 wisconsin departments wan agencies will be 981.90 of this part does not provide ave., nw, washington, d.c. 20235. accompanied by a cover letter adequate further information to (b) the clerk will maintain a docket containing; complete the application within the time and the record for each license (1) a request that the other federal or fixed in the written notice, and the application proceeding. the docket will state department or agency maintain the administrator elects to disapprove the list each document in the record. the information in confidence in accordance application under 981.90 (c) of this part. record will contain all documents filed with applicable law and any applicable 981.130 application fees or issuser in the proceeding that the clerk protective agreement entered into by the (a) schedule of payment. the has received and any other documents administrator and the federal or state applicant must submit the application in the proceeding that are listed on the of any request for disclosure of the fee in accordance with the following docket in accordance with this part. information; schedule: (c)comments submitted by federal (3) a notification that information (1) a nonrefundable payment of one agencies and departments on each which is exempt from disclosure under 5 hundred thousand dollars ($100,000.00) licensing proceeding will be listed on the u.s.c.532 (b) (4) (the section of the must be submitted with each application docket when they are received. the freedom of information act relating to for issuance of a license. draft and final ennvironmental impact trade secrets and commerical or (2) an additional payment of one statements prepared in accordance with financial information which is privileged. hundred thousand dollars ($100,000.00) 981.310 of this part will be listed on the must be submitted not later than the docket when they are tarnsmitted to the environmental protection agency. 39400 Federal Register / Vol. 46, NO. 147 / Friday, July 31, 1981 Rules and Regulations 981.150 PubLIC inspection and copying. Subpart B-information to be each partner or the proprietor. (a] A copy of each application. except Submitted with Application respectively, stating that the individual information for which confidential is a citizen of the United States of 981.160 Why is this information America.. treatment is requested (for example. as required? (2) if the applicant is a corporation. trade secrets or commercial or financial. (a) information for NOAA. The Act. -one copy of its charter or instrument by information which is privileged or requires the Administrator to. make a which the: corporation is formed and confidential), will be available for publlc number of factual determinations with Organized under general corporation inspection and copying at: respect to issuance of a license. This- laws. certified by the Secretary of State (1) NOAA. Office of Ocean Minerals subpart prescribes: the information or other appropriate authority of the and Energy, Room 410. Page I Building, which the applicant must provide with State in which incorporated. a copy of 2001 Wisconsin Ave.N`W, Washington the application. If additional information its by-laws certified by its Secretary or D.C. 20235, and later becomes necessary to enable the an Assistant Secretary, and an affidavit. (2) at least one location. In. each Administrator to make those from Its- president. or holder of similar designated adjacent coastal state. The determinations, the administrator will office, and each member of its board of Federal Register notice published under use the procedures in- 981.90 of this directors- stating the individual's 981.29O. or- equivalent. public notice, part to obtain it from the applicant. citizenship. will announce the- location. (b) Information for other Federal. (3) If the applicant is a Federal. State, agencies and departments. The Act or local government in the United (b)(1) The Administrator will requires the administrator not to issue a designate- a. custodian: of all information license if it is determined that the States or -any entity of any such for which confidential treatment is applicant cannot orwill not comply with government. a copy of the laws authorizing the operations- detailed in requested under 981.100 of this part.. applicable laws and regulations. this the application. The custodian will keep A record; of ail Subpart prescribes Information which known to have custody of any- the applicant must provide with the (4) If the applicant is an association or persons application must provide with. the other entity, a copy of its charter or copy or copies information which is application to. enable the Administrator to make that determination If' instrument by, which the entity is given confidential. treatment. additional organized or existing under the laws of (2) The custodian not make public Information later becomes necessary to for inspection, information which complete the application proceeding the the United States, or of any State and an confidential treatment-is-requested nor Administrator will use the procedures in affidavit from its principal executive. 981.90 of this part to obtain it from the officer. or holder of similar office; and otherwise. disclose such information applicant. from each member, of its board. of unless the Administrator. after-. directors. stating the individual's consultation with the NOAA Office Of 981.170 Request for use of the citizenship.. general Counsel. is of the opinion that Consolidated application review CAr (c) Address for service of documents. the applicable requirements of 981.100 Each application shall contain the name, of this part have- been satisfied. (a) Reguest, If the applicant wishes to address and telephone-number of a have the CAR process used. the person upon whom service of a notice 981.155 compliance with paperwork application shall so indicate. may be made if a formal hearing Is to be Reduction act: (b) CAR team representative. If the held on the application and the name. In accordance with 44 U.S.C. applicant requests use of the CAR address and telephone number of a 3506 (c) (5) and 3512. NOAA hereby. process. the applicant shall designate a person to whom documents not required informs affected persons that the representative to the CAR team in his, to be served may be sent. requests for information under this part. application. (d) Technical-competence. The- requiring, �981.80 Information about the applicant following information on the experience (a) Submission of specified and its afflilates of the applicant shall be provided with in ormation with applications; (a) General. The following information the application: and Cb) Compliance with, specified on the applicant and its affiliates shall (1) A description of the technical recordkeeping and reporting be provided by the applicant with the competence in offshore operationas of the requirements. application. applicant and each consultant.naval (1)the name, mailing address_ architect. or marine engineering firm if are not. subject to the- telephone number. citizenship, and the known. that will participate in the requirements of Chapter 35 of title 44, ownership interest in the and deployement of large structures, United States Code including 44 U.S.C. its affillates.of each person having any with particular emphasis on 3507. controlling interest in the applicant or its involvement in offshore construction. afflilates or any ownership interest in deployment of large structures. 981.158 computiation of time periods for the applicant or its affiliates of greater submarine electrical transmission filing documents cables, submarine pipelinnes. seabed than 5. per centum; and Saturdays, Sundays and Federal (2) The name, address, and citizenship foundations, mooring systems, and other Government holidays wi1l be included in of any person with whom the applicant experience that would bear on one's computing the time period allowed for and its affiliates have made, or propose qualifications to participate in the filing any document under this Part, but to make, a significant contract for the construction or operation of an OTEC when such time period expires on such a construction or operation of the OTEC. facility or plantship. day, such time period will be extended facility or plantship, or for any major (2) A listing and abstract of each to include the next following Federal component of the 0TEC facility or study relied upon by the applicant and a Government work day. Also, with plantship, and a copy of such contract. listing and abstract of each ongoing or (b) Proof of citizenship and authority completed study pertaining to OTEC respect to documents filed with the (1) If the applicant is a partnership or facilities or plantships conducted by or Federal Government, filing periods sole proprietorship, an affidavit from for the applicant. expire at the close of business for the office specified on the day specified. Federal Register / Vol. 46, No. 147 / Friday, July 31, 1981 / Rules and Regulations (e) Finances and production. The following information on the financial situation and production history and plans of the applicant and each of its affilates shall be provided by the applicant with the application: (1) The most recent annual financial statement of the applicant and each of its affiliates, including an income statement and a balance sheet accompanied by an opinon of a certified public accountant: (2) An estimate of construction costs by phases: (3) A detailed estimate of the cost of removal or at sea disposal of all marine components of the OTEC facility or plantship other than electrical transmission cables or pipelines lying below the seabed; (4) A copy of every agreement or proposal of the applicant and each of its affiliates relating to the ownership, lease, charter, or operation of the OTEC. facility or plantship or any of its components and to the financing of the construction or operation of the OTEC facility, plant or plantship or component thereof; including those relating to production of electricity or other products, capital contributions, loans, guarantees, and commitments therefore and, (5) From each applicant and each affiliate of an applicant engaged in the production of electricity or other product to be produced by the OTEC facility or plantship which is the subject of the application for each of the three calender years immediatley prior to the date of application; its: (i)Locations; and (ii)Total U.S. and total worldwide: (A)Gross and net production of electricity; and (B) Production of products of the type which would be produced by the OTEC facility or plantship which is the subject of the application. 981.190 General Information on the OTEC facility or plantship. The following general information shall be submitted with th application in the order specified in this section: (a) The proposed physical size and location (for a plantship, a description of the area in which the plantship is intended to be operated) of the OTEC facility or plantship, and the intended capacity of such facility or plantship to produce electricity, fresh water, or other products, including an estimate of the total annual gross and net production of electricity or other products: (b) A description of the thermodynamic cycle and working fluid to be employed by the OTEC facility or plantship: (c)A description of any production, processing, refining, or manufacturing process which will be used to make a product: (d)A description of the methods which will be used to deliver electricity, fresh water, or other product to shore: (e)A general description of the major components of the OTEC facility or plantship; and any pipeline or electrical transmission system or other product transfer system associated with such OTEC facility or plantship; (f)If construction and deployment is expected to proceed in phases, a description of each phase, including the anticipated date of completion for each phase. (g)The intended daily volumes of warm and cold water flow through the OTEC facility or plantship; (h)A description of the procedures to be uses in constructing, operating, and maintaining the OTEC facility or plantship, including procedures to be used to control biofouling and to minimize the volume of any Federally permitted pollutanta discharge from the OTEC facility or plantship; (i)A description of the procedures to be used in constructing, operating, and maintaining the OTEC facility or plantship to prevent and unpermitted pollantan discharge and (j)An emergency pollutant discharge contingency plan, which describes the equipment, training, procedures, and maintainence required to respond to or conduct cleanup of any unpermitted pollutant discharge from the OTEC facility or plantship. (Standards for such a plan and for review of the adequacy of such a plan will be determined by the Coast Guard). 981.200 Requested duration of license. The applicant shall submit with the application a statement of the requested duration of the license he is seeking along with the economic technical, or other basis for the requested duration. 981.210 Compliance with other Federal laws and regulations: (a) If the porposal of the applicant is subject to regulation under the cited authority, the information specified in this section shall be submitted with the application. (b)Clean Water Act The information required to be submitted to the Environmental Protection Agcney to obtain a National Pollutant Discharge ELimination System (NPDES) permit under section 402 of the Clean Water Act (Pub L 92-500, as amended by Pub. L.95-217 and Pub. L. 95-576; 33 U.S.C. 1251 et seq). The procedures and information required for such submittals are set out in 33 CFR Part 122. 33 CFR Part 124, and 40 CFR 125.120 et seq. In addition, NPDES permits for discharges into marina waters are issued in compliance with guidelines developed by EPA under section 403(C) of the Clean Water Act. For the Ocean Discharge Criteria see 40 CFR Part 125. Subpart M (45 FR 85962: October 3, 1980). (c)Clean Water Act The information required to be submitted to the Corps of Engineers within the Department of the Army to obtain a Permit for Discharges of Dredged or Fill Material into Waters of the United States under section 404 of the Clean Water Act (Pub. L. 92-500, as amended by Pub. L. 95-217 and Pub L. 95-578; 33 U.S.C. 1251 et seq). The procedures and information required for such submittals are set out in 33 CFR Part 320, 33 CFR 323, and 33 CFR Part 325. (d) Marine Protection Research and Sanctuaries Act of 1972. The information required to be submitted to the Corps of Engineers within the Department of the Army to obtain a Permit for Ocean Dumping of Dredged Material under section 103 of the Marine Protection Research, and Sanctuaries Act of 1972. as amended (33 U.S.C. 1413). The procedures and information required for such submittals are set out in 33 CFR Part 320 33 CFR Part 324 and 33 CFR Part 325. (e)River and Harbor Act of 1899. The information required to be submitted to the Corps of Engineers within the Department of the Army to obtain a Permit for Structures or Work in or Affecting Navigable Waters of the United States under section 10 of the River and Harbor Act of 1899, 33 U.S.C. 403. The procedures and information required for such submittals are set out in 33 CFR Part 320.33 CFR Part 322, and 33 CFR Part 325. (f) Endangered Species Act of 1973. The information required to determine whether the activies of the OTEC facility or plantship are likely to jeopardize the contintued existence of any endangered or threatened species or result in the destructinor adverse modification of their critical habitats, as determined under the Endangered Species Act of 1973 (18 U.S.C. 1531 et seq). For the lists of endangered species, see 50 CFR Parts 17 and 222; for the lists of threatened species, see 50 CFR Parts 17 and 227; for the lists of designated critical habitats, see 50 CFR Parts 17 and 228. (g)Coastal Zone Management Act of 1972. The certification or certifications required to be submitted to NOAA under section 307(c) of the Coastal Zone Management Act of 1972 (CZMA) (18 39402 Federal Register / Vol. 46, No. 147 / Friday, July 30, 1981 / Rules and Regulations U.S.C. 1456(c).The procedures and information required for such submittals are set out in 15 CFR Part 930. (h) Outer Continental Shelf Lands Act Amendments of 1978.. The information required to be submitted to the Corps of Engineers within the Department of the Army to obtain a Permit for Artificial Islands, Installations, and Other Devices, Installed on the Outer Continental Shelf, which May Obstruct Navigation, under section 4(e) of the Outher Continental Shelf Lands Act (15 U.S.C.203(e). The procedures and information required for such submittals are set out in 33 CFR Part 322. (i)Clear Air Act. The information required to be submitted to a state or to the Environmental Protection Agency to determine compliance with the Clean Air Act (42 U.S.C. 7401 at seq.) The procedures and information required for such submittals are set out in 40 CFR Part 50-87. (j)Fish and Wildlife Coordination Act- (FWCA). Information to assist NOAA in complying with the consultation requirements of the FWCA (16 U.S.C. 861 et seq; in particular, section 662), with a view to the conservation of fish and wildlife resources by planning and incorporating measures to prevent loss of and damage to such resources. NOAA strongly encourages each applicant to contact NOAA at the pre-application stage of the project, to facilitate early consultation with the National Marine Fisheries Service the U.S. Fish and Wildlife Service and State agencies administering affected wildlife resources: (k)Additional Federal authorizations required. All other applications for Federal authorizations required for ownership, construction, location, and operation of the proposed OTEC facility or plantship not listed elsewhere in this Part. 981.220 OTEC site information (a) General. The following information on the proposed OTEC facility site or proposed OTEC plantship operating site(s) as appropriate shall be submitted with an application. (b)Site plan. Single-line drawings and descriptions showing the location and type of each major component and apportenance of the proposed OTEC. facility or plantship, including floating structures. fixed structures, electrical power transmission cables, aids to navigation, industrial process systems. offshore and onshore pipelines. electrical substantions and switching stations. One of these drawings must be a large-scale nautical chart of the area in which the proposed OTEC facility or plantship would operate. (c)Existing human uses. Single-line drawings of the marine area within five miles of the proposed site showing the nature and location of any cables, pipelines, offshore drilling or production platforms, aids to navigation, sewage outfalls, or other man-made structures and equipment. These drawings must also show the boundary lines and identification of each Outer Continental Sheif lease block, shipping lane, submarine transit lane, fishing ground. national defense restricted area, or other special area noted on navigation charts for the area covered by the drawings, or otherwise known to the applicant. The information required in 981 280 (a)(7) and (a)(8) of the part must also be included on these drawings. (d) Marina components A description of; (i)the proposed size and location of; (j)All-fixed and floating structures associated with the OTEC facility or plantship; (ii)In the case of a moored OTEC facility, watch circles: (iii)Maneuvering areas: (iv)Recommended ships' routing measures considered necessary or appropriate for the protection of the OTEC facility or plantship; (v)Recommended anchorage areas, if any; (vi)recommended mooring area for marine site; (vii)Pipelines and cables within the marina site: (2)The water depth throughout the proposed marina site. (3) In the case of an OTEC facility, a reconnaissance hydrographic survey of the proposed marina site. Note-A requirement to submit an engineering hydrographic survey of the final marine site for an OTEC facility will be imposed as a license condition. (e)Soil data. For an OTEC facility, an analysis of the general character and condition of the ocean bottom and sub- bottom strata throughout the marine site and along the path of any cold or warm water intake or discharge piping, electrical transmission cable, or pipeline to the shore, including an opinion by a registered professional engineer with appropriate expertise and training concerning: (1)The suitability of the ocean bottom and sub-bottom strata to accommodate the anticipated design load of each marine component that will be fixed to or supported on the ocean floor as evidenced by foundation tests, geo-technical reports; and (2)The stability of the seabed when exposed to the environmental forces resulting from severe storms, or to lesser forces that continues for an extended period, including any history of accretion or erosion of the coast line in proximity to the marine site. (f)Onshore components. A description of the size and location of major onshoe components of the OTEC facility, including; (1)Onshore electrical transmission cables or pipelines; (2)Electrical substations; (3)Switching stations; (4)Elecrical transmission lines; (5)Storage facilitiesl (6)Industrial plants and (7)Vessel on/off loading facilities. 981.230 Operational information (a)Each applicant shall specify the wind, wave, and current conditions during which the licensee would initiate the following actions: (1)Shutdown of electrical power or other product production operations. (2)Prohibition on supply vessels or product transport vessels mooring to an OTEC facility or plantship. (3)Shutdown of all operations and evacuation of the OTEC facility or plantship. (b)Each application shall contain a description of the calculations and other information used to specify the conditions described in paragraph (a) of this section. (c)Each application shall contain a description of the procedures to be followed in shutdown and evacuation of the facility or plantship under the conditions described in paragraph (a) of this section. (d)Each application sha state the personnel capacity of the OTEC facility or plantship. 981.240 Design information (a)The applicate shall submit the design information specified in this section with his application. (1)A description and preliminary design drawing of each major floating component, including any electrical transmission riser cable, product transfer system, cold, and warm water intake and discharge structures, or cold water pipe suspension system if they are floating systems in whole or in part, along with any floating anchoring or securing structure. (2)The design criteria to which each major floating components is to be designed and built. (3)The design standards and codes to be used. (4)The title of each recommended engineering practice to be followed. marin Federal Register / Vol. 46 No. 147 / Friday, July 31, 1981 / Rules and Regulations 39403 (5)A description and the results of any design and evaluation studies performed by or for the applicant on a major floating component. (6)A description of safety, lifesaving, and firefighting equipment to be used on each major floating component. (c)Major fixed marine components. (1)A description and preliminary design drawing of each major fixed marine component including cold and warm water intake and discharge structures; if they are fixed marina components in whole or in part. (2)The design criteria to which each major fixed marine component is to be designed and built. (3)The design standards and codes to be used. (4)The title of each recommended engineering practice to be followed. (5)A description and the results of any design and evaluation studies performed by or for the applicant for any major fixed marine component and utilizied in the development of the application. (8)A description of safety, lifesaving and firefighting equipment to be used on each major fixed marina componant. (1)A description and preliminary design drawing of each major onshore component. (2)A desciription and the results of any design and evaluation studies performed by or for the applicant for any major onshore component and used in development of the applicant. (3)A description of the safety and firefighting equipment to be used in each major onshore component. (e)Offshore electrical transmission cable or pipeline components. (1)A description and preliminary design darawing of any submarine electrical transmission cable or pipeline, including size, capacity, length, depth and protective devices. (2)The design criteria to which the submarine electrical transmission cable or pipeline is to be designed and built. (3)The design standards and codes to be used. (4)The title of each recommended engineering practice to be followed. (5)A description of the manner in which all submerged or buried communications cables, electrical transmission cables, and pipelines will be crossed by the offshore submarine electrical transmission cable or pipeline. (f)Miscellaneous components data; (1)A description of the navigation safety equipment required under 33 CFR Part 184 for a plantship. (2)A description of aids to navigation to be established on the OTEC facility in accordance with 33 CFR Part 64 and 33 CFR Part 68. (3)A description of the proposed navigational lighting for the OTEC plantship in accordance with the international Regulations for Prevention of Collisions at Sea 33 CFR Part 87. (4)A description of the radio stations or other communications facilities and the proposed method of operation to serve the OTEC facility or plantship during construction and operation. including systems to communicate with transient shipping for safety at sea. Note-Federal communications Commission applications for the OTEC facility or plantship may be submitted directly to the Federal Communications Commission when sufficient technical information is available to meet the rules of that agency. The holding of appropriate Federal Communications Commission licenses will be made a condition on each OTEC facility or plantship license. (5)A description of plans an methods of operating vessels supplying or transporting products from the OTEC facility or plantship. (6)Type, size and number of vessels to be used in supplying or transporting products from the OTEC facility or plantship: (7)A description and exact location of any shore based support facilities to be provided for vessels described in paragraphs (f) (5) and (f)(8) of this section: 981.250 Construction and deployment procedures A description of the locations, methods and procedures to be used in constructing and deploying each major marine component of the OTEC facility or plantship must be submitted. This description must include an explanation of the method for emplacing any submarine electrical transmission cable. 981.250 Environmental information (a)The following environmental information and assessments shall be provided with the application: (1)A description ot the area or areas of the ocean and theier boundaries, in which the OTEC activities of the applicant might impact so as to significatnly degrade the operation of another OTEC facility or plantship, and in which the potential operation of another OTEC facility or plantship might impact so as to significantly degrade the OTEC operation proposed by the applicant. (2)An assessment of the quantities, composition and potential for bioaccumulation or persistence of any pollutants which may be discharged into the water or atmosphere from the facility or palntship: (3)An assessment of the potential transport of such pollutants by biological, physical or chemical processes: (4)An assessment of the composition and vulnerability of the biological communities which may be affected by entrainment, impingement, or by such pollutants, including the presence of unique species or communities of species, the presence of species identified as endangered or threatened pursuant to the Endangered Species Act. the presence of species of marina mammals, or the presence of those species critical to the structure or function of the ecosystems, such as those importanta for the food chain: (5)An assessment of the potential impacts on human health of such pollutants through direct and indirect pathways: (8)An assessment of the importance of the receiving watre area and atmosphere to the surrounding biological community, including the presence of spawning sites, nursery/ forage areas, migratory pathways, or areas necessary for other funcitons or critical states in the life cycles of an orgism: (7)A description of special sites which might be impacted by the proposed OTEC operations including, but not limited to estuarine or marine. sanctuaries and refuges, parks, national and historic monuments, archeological resources, national seashores. wilderness areas and coral reefs, and an assessment of the potential significance of such impacts. The location of these sites must be included on the drawings required by 981.220(c) of this part; (8)A description of ecxisting or potential recreational and commercial fishing areas, including finfishing and shellfishing areas, which might be significantly impacted by the proposed OTEC operation. The locations of these areas must be included ont the drawings required by 981.220(c) of this part: (9)(1)A description of expected meteorological and climatic conditions in the area(s) described in paragraph (a((1) of this section, including estimates of the frequency and severity of extreme meteorological events: (10)For an OTEC facility, a descirption of the seismological conditions at the proposed site. including estimates of the frequency and severity of extreme seismological evants: (11)A description of the physical oceonographic conditions in the area(s) described in paragraph (a)(1) of this in 0 404 Fderai Register / V l. 4& No. 147 Frdav jui 31, 1981 Rules and Regulations section. including udac and Administrator will consult with other notice of intent t file was received after subsurfaca currmts, density gradients. involved Fedlral agencies and, such 4M-day period. or which is received and tides; departments. after such 90-day pehod has elapsed. (121 A deac:jption of the (b) If the Administrator determines shall be considered until action has environmental mcniiaring program that such information appeam to be been completed on ail timely filed proposed by the applicant to: contained in the application. the applications pending wi0dt respect to (@j Demonstrate compliance with Adrairi tzmto wili take- the actions sucJ2 application area- applicable Federal. State. or other under I-S4M4M of this part. (dj Not later than 5 days after pertinent air and water uality (c) If the Admiri tratar determines determinin under I 92M.28W of this part standards-, that all of the reuired information does that an application submitted in (H) Provide for eariy detection of not appear ta be contained hx the, accordance with paragraph (c) of this potential releases of pollutants front the applfcation; the Admiuistratorwill section appears to be complete. the MC facility-orplantshi67 and notify the appii=t i= a=rdancs. with' A-firaini t'ratcr will publish notice oi (2W) Mcnitor the effects of cold and f 90M4M of this put The Administrator re"ipt of the agplication. together with warm water iz0@es and. of discharges may dodder to. taka1p1p2p1pther action a summary oi ths, plans specified in the frm@ the. 4=C facility or plant3ldp an with respect taproceizing the. appHeation. in. the Federal Register. The. air, watm sediment and biological application until au0& deficiencies have notici will also contain a descnptton, of, uality. Note that ammer6ial limits for been remedied. the application area des=bed in-the conventional, ram-conventional. and (d) 7hL- time Hinitatfans of@thjs original notice-oublished by the tdc, pollutants for :narlne wateri are Subpart do nof beg= ta. = until the Administrator for that. area tinder identified 2h the Envirommental -date onwhich- the Administrator paragrap8i (bj of this secd an- Prtecti= Agencr pubilcad= 4Cmilky determines under pamgraphL (b) of this If additionalaipplications Fdr a. Cnteriafor Water (the 'Red 6Booie,7.' section that-the applicati=ppears, to designated application area are received and fmwatw uafity, crR=a for to= be complete. pursuant to paragraph (c) of this section. pollutants set out in 45 F0R 2=73@4 4M7 I S'rM the original applicant and ad subseuent' Nvember24a ISM; - appocado0m co"teats at rx4wcv@ *a& for applIcan for licenses in the designated (b) A dasalvdaz wd the. remL8b of sddk0Winkapp9crtionsfor C0T4m 0f0tcwues., application are'a shall1pmit the any study crevaination. tmed:b3r the -(a) Not latw thum a days- a6&_rr - fail raing information notlater than 30 applicant to deveiap-tlie ixicrazedoz.- - dete-ininst under I 981.Z4M of this part days. after expiratim of the. 90-day and asftssment3r reuired by this, .-.. od prtxvidad for in paragraph (c) oi sectiaa-=tust he 3ubmftted- witbr the that anappi2kationappeam to be Peri campli4de. th& AAh8mni1t3aMP Will Publish@ this secticii- appileatiom notice of receip 'of the application; (1) Prafectirm or. estimates of the unit Subpart 0C-Licartse Ap6oicatian. togetherwith a summary oi tha plan cost to the endr user ai produced. Review. Procedures. specified Im the applicad an in tha electricity or product dtiring the.first, Federal2Register- third. sLxth. ninth at" year oi operation' I 99L4V0 What lattm 5=mw &PPOca0f0tm (b) In.the. case ofamappi6kation forin.' throughout the reuested durador@ ai the - I *view process? OTE0C facilitk the- Published notica also OTE6C facility. licen ezand This subpart des=ibes the procesw wilLincluder. (6g8Amestimateaitheamountoifbai- whitih; isusecLby N4d2A6A to, review anr @z (I)Adescr0bd cf-tbjtdes4*ated or a ,ther raw-materials whiebt would be applicatiot'L for an-404=IIc-Re_TbA,. '7 applicatfan arem encompassing the- saved or made available for othen- uses A.tprescrLbes. c2rtaiumandatm0T step& proposed. 0GT6E4C facility. and-within. becadme oi the operation. oi Lhe-00767C in tha 6Mwass and est2blishas deadlin whicbc@ facility, projected an an annual basis for their toro-nieflon,.4ne MAIMIMintory. (11-7lie6O6T0Macdvitiespro8weedby through the- expected usefu@ Ufe of the steps in the fican application review- ' thaappiicatitzaiglitimp=,-.aa&.tcL- OTEC facility.. process axe- set out first in this-Subpa0m si=iFic;m0y degrade. the operation of The estimates provided under this in I j 98i-4= throug;b. 9ai_4v(L.,i6cAA- another 6C2TEC facility; and. paragraph should be supported by an has also developed a, voluzitary; - - (UjThs@potentia operaticnafawthet analysis oi the specificmarkets in which Cnsoldiwed.Applilcaticn Review (CAR) 0CU2IC facility might impact so as to the OT8EC facility would compete. process whichwi6abeuse6d by 2NOA6k. sigMihC3IItIY degrade the 6C2T2EC and. on. a- voinntary basis. by. other operatton;-pwpmed by, the applicant. I 9SI-30M Other Federai agendas and tvolved.Feciet-L Staift and loc aL (2) A call f4i submission of any -other deparenerd& - gve-ent entitim-to-coordirsta, applica ticas for. licenses fax the- (a) At the.. time no tice of any reviews associated with all0Iederal. ownership. =wtruction. and operation application is published pursuant to State. andlocafgavernment . of an. 0=C facility withim the. 1981-290 of this part the Administrator authoriza tion reuired for a 2ership. designated ap i1cation. area. will forward a. copy ofs;uch ap iication - p p nst:ruc8ton. and operation of an 6C6T6E0C_ (c) Any Person iatpmriir to file an to those Federai agencies and fmlit7 or ;lant3hip. 0M& stemo, in the... application reLarrad ta in paragraph departments with juristilction over any CAR process am sar out in t2@2ia Subpart (6b2)(426) of this section shall submit a aspect of 16G2T2EC.ac4ilit8y or 8piants6h8i8p after the. mandat08M. review 2pzvce0du0ms@. notice o4f8latent. 0to Me an app2i2lea4dca to ownership, construction. or operation beginning at 2j MUM the Ad6mini tm0tor not later than 080 days. for review, comment and after the publication o0fna8dca 8pu0nuant rectimni0dn6da4da4mas to-11canse 1981.02080. 4M04CAA.mv 6f6tr 00"O00WS"6m0m to paragraph (a) o0f 0t6h8is 5ect8icn, and conditions an2d for such other act8j@izi as (a) Within 8Z4! days after the receipt of shall submit t0he-com2p6late0d app6Ucatioa may be reuired by law. The Federal an app6f6lcatitm. the Administrator will. no later than 90 days after publication c8i agencies involved shall 2inz0!ude, but are deter4minew6het0her the application such notice. No application for a license not limited to, the 6Env8irori8m n24W appears to contain ail o6f the information for the ownership. construction. and Prote6ez0ion 00Agenc0V and the ]Departments reuired: by Subpart B- of this part. In operat4iam.of an 24=C facility within 4t8he of Energy, Tzans0p00=atian. State. the M88" th:i0@-deter0=8iinat0ion t6h4; designated application area for w0Eic6h a Interior. Justice. and Defense. Federal Register / Vol. 46 No. 147 / Friday, July 31. 1981 / Rules and Regulations 39465 (b) Each Federal agency or responsibilities pursuant to the Act to (i) That there is a risk of damage to department involved (other than the prepare an EIS. the coastal environment of such State Department of justice, which shall equal to or greater than the risk posed to conduct its review in accordance with 981.320 Antitrust review. a State required to be designated as an 981.320 of this part) shall review the (a) Promptly after determining under "adjacent coastal State" by paragraph application and, based upon legal 981.280 this part that an application (a)(1) of this section, or considerations within its area of appears to be complete, the (ii) that the proposed OTEC activities responsibility, recommend to the Administrator will transmit to the of the applicant are likely to impact at Administrator the approval, approval Attorney General a complete copy of possible locations for OTEC facilities subject to conditions, or disapproval of such application. which could reasonably be expected to the application not later than 4.5 days (b) Within 90 days after receipt of the be directly connected by electric after public hearings are concluded application under, 981.300(a) of this transmission cable or pipeline to such pursuant to this part. In any case in part, the Attorney General shall conduct State, so as to significantly degrade which an agency or department such antitrust review of the application OTEC operations at such possible recommends disapproval, it shall set as he deems appropriate, and submit to locations. forth in detail the manner in which the the Administrator, in writing, any advice (2) Any State requesting designation application does not comply with any or recommendations he deems as an "adjacent coastal State" under law or regulation within its area of advisable to avoid any action upon such paragraph (b)(1) of this section must responsibility and shall notify the application by the Administrator which make its request to the Administrator, in Administrator of the manner in which would create a situation inconsistent writting no later than the 14th day after the application may be amended or the with the antitrust laws. the date of publiction of notice of license conditioned so as to bring it into (c)The Administrator will not issue application for a proposed OTEC facility compliance with the law regulation the license during the 90-day period, or plantship in the Federal Register involved. except upon written confirmation by the under 981.290 of this part. The request (c) In addition to the requirements of Attorney General that he does not must be signed by the Governor of the paragrapgh (b) of this section, each intend to submit any further advice or requesting State, and must specify in Federal agency or department is recommendation on the application detail the reasons why the State strongly encouraged to conduct its during such period. believes the Administrator should make review of the appilication and to make (d) If the Attorney General fails to file a determination under paragraph (b)(1) its initial or tentative recommenddation such views: within the 90-day period the of this section. of approval or denial to the Administrator will proceed as if such (3) The Administrator will make any Administrator before public hearings views had been received. designation required by paragraph (b)(1) begin under 981.340 of this part, so (e) If the Administrator decides to of this section not later than the 45th that the public hearings can address issue the license even though the day after the data he receives such a those tentative recommendations. The Attorney General has recommended request from a State. NOAA Administrator will also attempt against it, or to issue the license without (c) Transitional application; to make his preliminary views on the terms and/or conditions recommended "Federal Register" notice. Not later than application and possible license terms by the Attorney General, the 5 days after the designationn of an and conditions available before the first Administrator will inform the Attorney adjacent coastal State pursuant to this public hearing is held under 981.340 of General in writing of the reasons for section, the Administrator will transmit this part. such a decision. a complete copy of the application to the Governor of such State and publish 981.310 EIS for each application. � 981.330 Adjacent coastal States. notice of the designation in the Federal (a) General. (1) The issuance of any (a) Automatic designation. (1) The Register. license for ownership, construction, and Administrator will designate as an (d) Consultation with adjacent coastal operation of an OTEC facility or "adjacent coastal State" any coastal. States with approved Coastal Zone piantship will be deemed to be a major State: Management programs on license Federal action significantly affecting the (i) Which would be directly connected conditions. quality of the human environment for by electric transmission cable or (1) The Administrator will not issue a purposes of section 102(2)(C) of the pipeline to an OTEC facility as proposed license without consultation with the National Environmental Policy Act of in an appilcation; Governor of each adjacent coastal State 1969 (NEPA) (42 U.S.C. 4332(2)(C)). (ii) In whose waters any part of such which has an approved Coastal Zone (2) Whether other actions concerning proposed OTEC facility would be Management (CZM) program in good a license, such as transfer or renewal of located: or standing pursuant to the Coastal Zone the license, require full EIS procedures, (iii) In whose waters an 0TEC Management Act of 1972 (16 U.S.C. 1451 will be determined on a case-by-case plantship would be operated as et. seq.). basis in accordance with NEPA. proposed in an application. (2)(i) If the Governor of a Slate (b) NOAA as lead agency. For ail (2)The Administrator will announce referred to in paragraph (d)(l) of this timely applications covering proposed the designation of an adjacent coastal section determines that an application is OTEC facilities in a single application State under paragraph(a)(1) of this inadequate or inconsistent in some area, and for each application relating to section in the notice of application respect with the State's CZM program or a proposed OTEC plantship, the published in the Federal Register under other applicable State or local laws, the Administrator will pursuant to section 981.290 of this part. Governor may so notify the 102(2)(C) of NEPA and in cooperation (b) Other designation. (1) The Administrator, including the following with other involved Federal agencies Administrator will upon request of a information: and departments, prepare a single EIS State, designate such State as an (A) The part of the State's CZM which will fulfill the requirements of all "adjacent coastal State" if he program, or the other applicable State or Federal agencies in carrying out their determines: local law, with respect to which the 39406 Federal Register Vol. 46 No. 147 Friday, July 31, 1981 / Rules and Regulations application is inadequate or (b) Multiple applications for OTEC with 5 U.S.C. 354 and the procedures set inconsistent: facilities. If two or more license forth in Subpart E of this Part. The (B) The manner in which or reason applications for OTEC facilities have record developed in any such why the application is inadequate or been filed for the same designated adjudicatory hearing will be part of the inconsistent and application area, the Administrator will basis for the Administrator's decision to (C) How the application may be consolidate the hearings on the approve or deny a license. amended or the license conditioned, so applications. as to make activities conducted under (c) Location. With respect to each 981.360 Timely conclusion of public the license consistent with the State's license application at least one public hearings. CZM program and other applicable hearing will be held in the District of (a) All public hearings on all State and local laws. Columbia and in, any adjacent coastal applications with respect to OTEC (ii) Any notice given to the State in which an OTEC facility which is facilities for any designated application Administrator by a Governor under the subject of the application is area will be concluded no later than 240 paragraph (d)(2)(i) of this section must proposed to be located or to which it days after notice of the initial be in writing, and must contain the would be directly connected by pipeline application has been published under information described in paragraphs or electric transmission cable. �981.290 of this part. (d)(2)(i)(A) through (C) of this section (d) Notice of public hearings. After all (b) All public hearings on applications (3) If the Governor of a State referred applications in a proceeding are filed, with respect to OTEC plantships will be to in paragraph (d)(1) of this section has the Administrator will publish a notice concluded no later than 240 days after act transmitted his approval or of public hearing in the Federal Register notice of the application has been disapproval under paragraph (d)(2) of and mail or deliver a copy of the notice published pursuant to 981.290 of this this section, to the Administrator by the to any person who requests it and to part. 45th day after public hearings on the each applicant and to the Governor of (c) Upon conclusion of all public application are concluded under this each adjacent coastal State. Each notice hearings with respect to an OTEC part, his approval shall be conclusively will list the application(s), state the time license application under this part. the presumed. and place for the hearing, and describe Administrator will publish a notice in (4) Upon timely receipt of notice from any factual issues in the proceeding. A the Federal Register stating that all such a Governor under paragraph(d)(2)of notice may prescribe procedural matters public hearings have been concluded this section, the Administrator will to govern the hearing, may designate the and specifying the date by which condition any license granted to make presiding officer assigned by the recommendations or notice must be activities conducted under the license Administrator for the hearing and may submitted under � 981.300(b) and consistent with the State's CZM contain such other information as the 981.330(d)(3) of this part. program and other applicable State and- Administrator determines may facilitate, local laws. If a license cannot be so the conduct of the hearing. 981.370 Timely Issuance of draft and conditioned the Administrator will not (e)Participation by interested final EIS's on the application. issue the license. persons. Interested persons may attend (a) Draft EIS. Each draft EIS relating (e) Consideration of reviews of other any public hearing, present relevant to proposed OTEC facilities or, States. Any adjacent coastal State material at the hearing, and submit plantships will be prepared and issued which does not have an approved CZM written material and oral statements within 180 days after notice of the initial program in good standing and any other, during the hearing at a time and in a application has been published pursuant interested State, will have the manner determined by the presiding to 981.290 of this part. opportunity to make its views known in officer. (b) Final EIS. Each final EIS shall be writing to and to have them given full (f) Report of public hearing. Within 21 issued not later than 90 days following consideration by the Administrator days after a public hearing is completed, the date on which public hearings are regarding any application for a license the presiding officer will prepare a concluded pursuant to 981.360 of this for the ownership, location, report of the hearing. The report at a part. construction, or operation of an OTEC minimum will contain a summary of the (c) Extension of time periods. The facility or plantship. materials presented and factual issues Administrator may extend the deadlines (f) Tentative recommendations. In raised at the hearing and will have specified in paragraphs (a) and (b) of addition,to the provisions of paragraphs attached to it a transcript of the hearing this section for issuance of a specific (d) and (e) of this section, each adjacent and all relevant written materials draft or final EIS to a later specified coastal State is strongly encouraged to submitted to the presiding officer. date if the Admininistrator notifies the conduct its review of the application applicant in writing and describes the and o make its initial or tentative �981.350 Formal hearings on material good cause for such extension. recommendations to the Administrator factual issues. before public hearings begin under (a) If, on the basis of the hearing � 981.380 Steps in the voluntary 981.340 of this part, so that the public report required by 981.300 of this part, Consolidated Application Review (CAR) hearings can address those tentative the Administrator determines that there process. recommendations. exists one or more specific and material (a) The voluntary CAR process, which factual issues which must be resolved supplements the preceding mandatory 981.340 Informal public hearings on by a formal evidentiary hearing, the steps in this subpart, includes the license application. Administrator will issue a notice of following procedures: (a)General.(1) A license may be formal hearing under 981.360(d) of this (1) Early designation of a issued only after public notice, part. representative from each participating opportunity or comment, and public (b) If the Administrator determines Federal, State, and local government hearings in accordance with this part. under paragraph (a) of this section that entity, as well as each OTEC license (2) Hearings held under this part will a formal hearing is necessary, at least applicant to serve as members of the be consolidated insofar as practicable one adjudicatory hearing will be held in Consolidated Application Review (CAR) with hearings held by other agencies. the District of Columbia in accordance team: Federal. Register, / Vol, 48. No. 147 / Friday, July 31. 1981 / Rules and Regulations 39407 (2) Development and signing of a Joint Agreement among participating Federal, State, and local government entities and each applicant. The Joint Agreement identifies the members of the CAR team, details the regulatory and review responsibilities of each participating government agency having jurisdication over any aspect of the construction or operation of OTEC facilities or plantships, and outlines the responsibilities of each applicant in the CAR process: (3) Conducting an inter-agency meeting with all members of the CAR team with all members of the CAR team which includes a breifing by each applicant on the details of each proposed OTEC facility or plantship, and a briefing by the government members on the procedures to be used in processing all necessary permits, authorizations, and approvals; and (4) Implementation of the CAR schedule, including completion of required regulatory reviews, conduct of necessary public hearings, preparation of an Environmental Impact Statement, and other CAR team activities necessary to ensure close coordination of the OTEC license review process. 981.390 Voluntary nature of the CAR process. (a) Applicant. Participation by each applicant in the CAR process is voluntary. If an applicant desires to have the application processed by the CAR process the application shall so indicate and shall contain a designation of a CAR team representative. (b) Other Federal, State, and local government entities. Participation by the Federal, State, and local government entities in the CAR process is voluntary. If an apllicant indicates a desire to use the CAR process, NOAA will contact other Federal, State, and local government entities with expertise concerning, or jurisdiction over, any aspect of the construction or operation of the OTEC facility or plantship proposed by the applicant and invite them to designate a representative to serve on the CAR team for that application. (c) Other application review agreements. Agreements other than the Joint Agreement may, at the option of the affected parties, be negotiated between any applicant and individual regulatory agencies, or between regulatory agencies, regarding any aspect of the regulatory reviews necessary pursuant to any governemnt permit, license, or authorization required for construction or opreation of the OTEC facility or plantship which is the subject of the application. Such agreements may be negotiated before or after an application for an OTEC license is submitted to NOAA. Such agreements will not be affected by an applicant's later decision to use the CAR process. 981.400 Effect of Joint Agreement on authorities. Nothing in the Joint Agreement developed by the CAR team shall abrogate the statutory, regulatory, or admini- strative responsibilities and rights of any party, agency, or jurisdiction. The CAR agreement is voluntary, and all parties will, in good faith work in a cooperative and coordinated fashion to carry out the responsibilities stated therein. 981.410 Request for designation of Federal CAR team members. Not later than the time the Administrator forwards copies of the application to other Federal agencies and departments pursuant to 981.300 of this part, the Administrator will request that each such agency and departmemt designate a representative to serve on the CAR team for the application, if the applicant has requested that the CAR process be used for application review. Such Federal agencies and departments will be requested to amke CAR team member designations within 14 days of receipt of the Administrator's request. 981.420 Request for designation of State and local CAR team members. (a) State members. NOt later than the time the Administrator fowards contes of the application to designated adjacaent coastal States pursistant to 981.330 of this part the Administrator will request that each such adjacent coastal State designate a representative to serve on the CAR team for the application if the applicant has requested that the CAR process be used for review of the applocation. Such designated adjacent coastal States will be requested to make CAR team member designations within 14 days of receipt of the Administrators request. (b) Local government members. The request from the Administrator pursuant to paragraph (a) of this section will include a request that the designated adjacent coastal States coordinate with affected local government entities within such State to such entities in designating CAR team members to serve on the CAR team for the application Such designated adjacent coastal States will be requested to ofward local government CAR team member designations to the Administrator within 14 days of receipt of the Administrators request. 981.430 Delvelopment of Joint Agreement by CAR team. (a)Schedule. Within 45 days after all members of the CAR team for the application are designated pursuant to this part, the CAR team will develop and sign a joint agreement among the participants. (b) Content. The Joint Agreement will include as a minimum (1)An identification of all members of the CAT team: (2) A statement of the regulatory and review responsibilities of each government entity represented on the CAR team: (3) A statement of the responsibilities of the representative of each applicant during the CAR process to be conducted on the application: (4) A schedule of meetings, hearings, and desicsions which must be completed during the CAR process; and (5) A brief description of the OTEC facility or plantship proposal which is the subject of the application. (c) Availability. After the Joint Agreement is completed and signed by CAR team participants, it will be listed on the docket and made a part of the record of the application proceeding in accordance with 981.140 of this part. The Joint Agreement will ten be available for public inspection and copying if accordance with 981.150 of this part. 981.440 Interagency CAR team meeting. (a)Schedule After completion of the Joint Agreement and prior to any public hearing or the application required by the Act, the CAR team will hold an initial public meeting. If practicable, the meeting will be held in an adjacent coastal State designated as such under 981.330 of this part. (b) Content. The inter agency CAR team meeting will consist of a briefing by each applicant on the details of the proposed OTEC facility or plantship and briefings by each givernment member of the CAR team meeting, present relevant material, and submit written and oral statements at a time determined by the persiding officer. 981.450 Implemenation of the CAR schedule (a) Cooperation. All emebers of the CAT team will, in good faith, work in a cooperative and coordinated fashion to address the responsibilities stated in the Joint Agreement and to assure that the 39408 Federal Register/ Vol. 46 No.147/ Friday, July 31, 1981/ Rules and Regulations schedule in the joint agreement is adhered to (b)Delays All parties to the Joint Agreement will make doog faith efforts to adhere to the schedule agreed to therein. However if unavoidable delays occur in submittal and review of information during the CAR process, the CAR team members will revise the joint Agreement schedule accordingly. A copy of any such revised schedule will be listed in the docket and made part of the record of the application proceeding. Subpart D-Criteria for Approval of Dentist of Application and for Establishment of License Terms and Conditions; Renewal, Transfer, Suspension; Renewal, Transfer, Suspension, Revocation, Termination, Relinquishment, and Surrender 981.460 Timely approval or denial of application for a license and issuance of a license. (a) The Administrtor will approve or deny any timely filed application for a license for ownership, construction, and operation of an OTEC facility for a designated application area not later than 90 days after public hearings on the applications for that application area are concluded pursuant to 981.380 of this part. (b) The Administrator will approve or deny an application for a license for ownership, construction, and operation of an OTEC plantship not later than () days after the public hearings on the application are concluded pursuant to 981.360 of this part. (c) If an application is approved, the Administrator will issue a license to the applicant no later than 30 days after approval of the application, provided the application fee has been paid in accordance with 981.130 of this part. 981.470 Criteria for approval or denial. (a) The Administrator may issue a license in accordance with the provisions of this part unless: (1) The Administrator determines that the applicant cannot or will not comply with applicable laws, regulations, and license terms and conditions: (2) The Administrator determines that the construction and operation of the OTEC facility or plantship will not be in the national interest and consistent with national security and other national policy goals and objective, including energy self-sufficiency and environmental quality; (3) The Administrator determines, after consultation with the Secretary of the department in which the Coast Guard is operating, that the OTEC facility or plantship will not be operated with reasonable regard to the freedom of navigation or other reasonable uses of the high seas and authorized uses of the Continental Shelf, as defined by United States law, treaty, convention, or customary international law; (4) The Administrator has been informed with 45 days after the conclusion of public hearings on that application, or on multiple applications for OTEC facilities for the designated application area, by the Administrator of the Environmental Protection Agency that the OTEC facility or plantship will not conform with all applicable provisions of any law for which EPA has regulatory authority; (5) The Administrator has received the opinion of the Attorney General pursuant to 981.320 of this part, stating that issuance of the license would create a situation in violation of the antitrust law, or the 90-day period provided in 981.320 of this part has not expired; (6) The Administrator has consulted with the Secretary of Energy, the Secretary of Transportation, the Secretary of State, the Secretary of Defense, to determine their views on the adequacy of the application, and its effect on programs within their respective jurisdiction and determines on the basis thereof that the application for a license is inadequate; (7) The proposed OTEC facility or plantship will not be documented under the laws of the United States; (8) The applicant has not agreed to the condition that no vessel may be used for the transportation to the United States of things produced, processed, refined, or manufactured at the OTEC facility or plantship unless such vessel is documented under the laws of the United States; (9) When the license is for an OTEC facility, the Administrator determines that the facility, including any submarine electric transmission cables and equipment or pipelines which are components of the facility will not be located and designed so as to minimize interference with other uses of the high seas or the COntinental Shelf, including cables or pipelines already in position on or in the seabed and the possibility of their repair; (10) The Governor of any adjacent coastal State with an approved coastal zone management program in good standing pursuant to the Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq.) notifies the Administrator under 981.330(d) of this part that the application is inadequate or inconsistent with respect to programs within his jurisdiction and the license cannot be conditioned as described in 981.330(d)(4) of this part; (11) When the license is for an OTEC facility, the Administrator determines that the operations of the facility are expected to impact so as to significantly degrade the operations of any other OTEC facility already licensed or operating without the consent of its owner; (12) When the license is for an OTEC facility, the Administrator determines that the operations of the facility are expected to impact so as to adversely affect the territorial sea or area of national resources jurisdiction as recongneized by the United States, of any nation, unless the Secretary of State approves such impact after consultation with such nation; (13) When the license is for an OTEC plantship, the Administrator determines that the applicant has not provided adequate assurance that the plantship will be operated in such a way as to prevent its operations from impacting so as to significantly degrade the operation of any other OTEC facility or plantship without the consent of its owner; and from impacting so as to adversely affect the territorial sea or area of national resource jurisdiction as recongnized by the United States, of any other nation unless the Secretary of State approves such impact after consultation with such nation; (14) If a regulation has been adopted which places an upper limit on the number or total capacity of OTEC facilities or plantships to be licensed under this part for simultaneous operation, either overall or within specific geographic areas the Administrator determines that issuance of the license will cause such upper limit to be exceeded; (15) The Administrator determines that the person to whom the license would be issued is not a United States citizens; or (16) The Administrator cannot insure that activities authorized by the license are not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitiat of such species unless an appropriate exemption has been granted under section 7(h) of the Endangered Species ACt (16 U.S.C. 1538(h)). 981.480 Multiple applications. (a) In the event more than one application for a license for ownership, construction, and operation of an OTEC facility is submitted for the same designed application area the Administrator will make decisions on license applications in the order in Vol. 48 No. 147 / Friday, JuLy 31 1981 Rules and Regulations Federal Register 39409 which they were submitted. unless the seek oral approval from the decision on the request for continued Administrator determines that one or a Admini trator before making a use of the components; or specific combination of the proposed substantial change. The licensee must (2) In the case of components lying on facilities clearly best serves the national immediately notify the Administrator. or in the seabed. the Administartor finds interest orally or in writing. of each substantial that such removal is not otherwise (b) In determining whether any one or change made. necessary and that the remaining a specific combination of the proposed components do not constitute any threat OTEC facilities clearly best serves the to the environment. navigation. fishing. national interest the Administrator, in (a) Each license, issued will contain. or other uses of the seabed. consultation with-the Secretary of among other- information. the following: (c) Consistency with programs of' an Energy will consider the following (1).The name and. number or other adjacent coastal State. If the Governor factors: identification: of the. OTEC facility or- (1) The goal of Making of any adjacent coa3tal State which has ,the greatest plantshiP an approved coastal zone management possible use of ocean thermal energy,. (2) The name of the person to whom program in good standing pursuant to' conversion by installing the largest the license is issued:- the Coastal Zone Management Act of- capacity- practicable in each- application (3) If different from the person to 1972 as amended-(16 U.S.C. 1451 at' area: whom the license is issued. the name(s) seq.), gives timely notice to the (2)- The amcunt of net energy. impact of the owner and operator of the Administrator under 901.330(d) of this of each of the proposed OTEC facilities; facility or plantship; and part-that an application is inadequate or- (3) The degree which the proposed (4) Term and conditions. on the inconsistent with the States coastal- OTEC facilities wilL affect the ownership, construction. location. and: zone management program or- other environment operation of the OTEC facility or applicable State or local laws, the. (4) Any significant differences plantship to which the license is subject Administrator will condition any license between anticipated, dates of pursuant to 981.520 of this part granted to make activities conducted commencement of. operation of the proposed OTEC facilities; and- $981.510 Duration of licenses and under the- license consistent-with the renewais State's coastal zone management (5) Any differences in costs of- license Each license program and other applicable State and: construction and operation of this proposed OTEC facilities.. to the extent- - issued under-this Part will. be for such local, laws- that such differentials may significantly period of years as the administrator (d)Prevention of interference with affect the ultimate cost of energy or may specify, but not exceeding 25years. other uses of the high seas. Each license products to the consumer. (b)Renewals Each renewai issued will include such conditions as the under this Part. will be for such-period of Administrator may determine to be Condition precedent to issuance years as the Administrator may, specify, neccessary and appropriate: to ensure of, license compliance with conditions and but not exceeding 10 years that- construction and operation of the prior approval at changed OTEC facility or plantship are (a0 General No license will be issued Terms and conditions of a conducted with reasonable regard for under this Part unless the prospective- license. navigation, fishing energy production. license first agrees in writing that (a)General Each license issued for an scientific research. or other uses of the (l) There will- be no substantial. OTEC facility or plantship will cintain high seas, either by citizens of the change from the plans. operational such terms and conditions on the United States or by other nations in ownership construction location and systems. and methods; procedure and their exercise of the freedoms of the high safeguards set forth in his application operation of the facility or plantship as- seas as recognized under the as approved without prior approval in. specified in this section. and such other- Convention on the High Seas and the writing from the Administrator terms and conditions as the general principles of international law. (2) There will be no change in the Administrator may prescribe as (e) Discharge impacts (i) Ownership of the licenser or- necessary. to carry- out the provisions of (1) Each license Will include su (H) Citizenship of the president or. the Act and this part. or which are other executive officer or the chairman- required by any Federal. department or conditions as the Administrator deems of the board of directors or holder, of agency- pursuant to the terms of the Act necessary to ensure that discharges similar office. of any member. of the and this part from the OTEC or piantship will board of directors- of the licensee will (b) Disposal or removal of not without prior reporting in writing, to. the: components of OTEC facility or (1) Significantly degrade the operation Administrator, arid: - plantship. The Administrator will of another OTEC facility or plantship, Or (3) The prospective licensee will establish as license conditions such (ii)Create a significant adverse effect comply with- license terms and bonding -requirements or-other an the territorial sea or area of national conditions the Administrator may assurances as he deems necessary to, resource jurisdiction. as recognized by prescribe in accordance with the assure that. upon the revocation. the United States. of any other nation. provisions of this part termination relinquishment or (f) Additional license condition for (b) Emergencies In case of an surrender of a license. the licensee will OTEC plantships Each license issued emergency posing an imminent and - dispose-of or remove all components of for an OTEC piantsship will contain a substantial. threat of harm to the OTEC the OTEC facility or plantship as condition requiring that the licensee facility or plantship to human life or to directed by the Administrator. The comply with such regulations concerning the environment the licensee is not requirement to remove or dispose of ail movement and navigation of OTEC required to obtain written approval from components may be waived by the Plantships as- the Coast Guard may issue the Administrator before making a, Administrator if-. under 109(c) of the Act. substantial change referred to in (1) In the case of. components another (8)Monitoring of license's activities paragraph (a)(1) of this section. if applicant or licensee requests to use. the Each license will contain term$ or circumstances allow the licensee should Administrator has not yet reached a conditions requiring the licensee: 39410 Federal Register./ Val. 46 No. 147@ Friday July 31, 1981 Rules and Regulations (1) To allow the administrator to foreign state to call at load-or unload Administrator as a revision is any piace appropriate Federal officers or cargo at or otherwise utilize the facility changes employees aboard the OTEC facility or or plantship which is the subject of the [1] Which would have significance for plantship to which the license applies, at license unless. the findings contained in 981.470(a) such. times and to such extent as the (1) The foreign state involved has which would permit the Administrator Administrator deems reasonable and agreed by specific agreement with the to refuse to issue a licenseor necessary to assess compliance with United States to recognize the (ii) Which would result in ownership any terms, conditions, or regulations jurisdiction of the United States over the construction. location or operation of an applicable to the license, and to report vessel and its personell while the vessel OTEC facility or plantship contracy to to the Administrator whenever such is located within any safety zone around existing terms and conditions in the . officers or employees have reason to the facility or plantship established by license believe there is a failure to comply. the Secretary of the department in (d) Public notice and opportunity to (2) To cooperate with such officers which the Coast Guard is operating; comment the administrator will and employees in the performance of pursuant to section 108(d) of the Act: publish in the Federal Register notice of monitoring functions and and each proposed modification and of each (3) To monitor the environmental (2) The vessel owner or operator has request for revision of a license term of effects of the operation of the OTEC designated an agent in the Unites States condition. Interested persons will be facility or plantship in accordance with for reciept of service of process in the allowed at least 30 days after theses terms and conditions. event of any claim or legal proceeding publication of the notice to submit (h) Dillgence Each license will resulting from activities of the vessel or written comments to the administrator contain a condition that the license its personnel while located within such On a case by case basis the diligently pursue the construction and safety zone. Administrator will determine whether to operation of the OTEC facility or (1) Compliance with other Federal provide -additional public participation plantship to which the license applies, law. Each license may contain procedures, such as conducting an as determined by the Administrators condition by the informal public hearing in a potentially estimate of a reasonable schedule for Administrator as necessary to assume affected adjacent coastal State construction and operation based on information submitted with the the compliance of activities conducted (e) Notice to the licensee and to under the license with other Federal Federal agencies and adjacent coastal application. The diligence condition laws and regulations. Such conditions states. established by the Administrator will will be based upon the application as (1) The Administrator will iisue allow for reasonable delay resulting comment upon the application as written notice of each proposed from unforseen circumstances. If the Administrator determined that a conducted by Federal agencies and modification and of each proposed license is not pursuing diligently the departments under Subpart C of this revision of a license term or condition costruction and operation of the Part facility or plantship to which the license �981.525 Review modification and (i) The licensee: applies, or that the project has revision of license terms and conditions (ii] Each Federal department or apparently been abandoned. the agency with juridiction over any aspect Administrator will cause proceedings to (a) NOAA review Periodically at of the ownership construction location be instituted under section III of the intervals not to exceed 3 years the or operation of the OTEC facility or Act to terminate the license. Administrator will conduct a review of plantship, which aspect may be affected (1) Reports and records.Each license each licensed OTEC facility or plantship by the proposed modification or will contain a condition that the licensee operation in conjunction with the revision: and keep such records and report licensee to determine the need if any (iii) The Governor of each adjacent periodically to the Administrator such for modification of license terms and coastal State designated with respect to information as the Administrator finds conditions. the OTEC facility or plantship involved to be necessary and appropriate (b) Modification as the result of a (2) Each recipient of the notice may (1) To assess compliance with review conducted under paragraph (a) submit to the Administrator such written diligence conditions established under of this section or any other time. the comments or recommendations paragraph (h) of this section Administrative after consultation with regarding the proposed modification or (2) To assess environmental impacts. interested Federal and State revision as the recipient deems of the OTEC operations of the licensee departments and agencies and the appropriate. Each Federal or State and to develop mitigation methods; and licensee and after an opportunity for department or -agency also may take (3) To comply with the requirements public comment may modify any term such actions as may be required by law. of Federal law and regulation or condition in a license consistant with If a Federal-or State department or (j) U.S. flag transportation vessels the purposes of the act and this part. agency recommends that -the proposed Each license will contain a condition (c) Revision modification or revision not be that no vessel may be used for the (1) At any time during the term of a approved it shall set forth in detail transportation on to the United States of license. the licensee may submit to the (i) The manner in which the proposed things produced processed. refined or Administrator a request for a revision modification or revision does not manufactured at the OTEC facility or a license. comply with any law or regulation plantship unless such transportation (2) The Administrator will approve within its area of responsibility and vessel is documented under the laws of such requests for a revision upon a (ii) The manner in which the proposed the United States finding in writing that the license with modification or revision may be (k) Foreign-flag vessels. Each license such revision would continue to meet amended-so as to bring it into will contain a condition that except in a the requirements of the Act and this compliance with the law or regulation situation involving force majeure the Part. involved. licensee will not permit a vessel, (3) A change which would require a (3) Each recipient of the notice issued registered in or flying the flag of a request to and approval by the under paragraph (e) [1] of this section Federal Register 'day, July 31 1981 Rules and Regulations Oster Val. 48 No. 147 Fr. 39411 will be allowed 30 days. from- the. date of licensee's objection under paragraph paragraph (a) of this section if the issuance of that notice, or untiL the last (g)(2)the Administrator will take anal Administrator determines that day of the public comment period action or the license modification or immediate suspension of such activities allowed under paragraph. (d) of this revision. is necessary to protect public health and section. whichever time period extends (2) The Administrator will. implement safety or to eliminate any imminent and longer. in which to submit written a license modification or revision by substantial danger to the environment comments and recommendations to the issuing an appropriate document as recognized in any treaty or Administrator. amending the license. convention to which the United States is (f) initial decision. a party. (1)After the close of the opportunity 981.530 Renewal of a license (d] relinguishment or surrender for comment provided. in paragraphs. (d) Each license shall have a preferential (I)- Any licensee may at any time, and (a) of this section, the Administrator right to renew a license. subject to the without penalty, surrender to the will initially approve I or disapprove the. requirements of this part upon such-. Administrator a license issued to him. or proposed modification or revision. terms and conditions. and for such relinquish to the Adminisrator in whole (2)The Administrator will publish period of years not to exceed an or in part, any right to conduct notice of the initial decision in the additional 10 years for each renewal. as construction or operation of an 0TEC Federal Register and provide. written' - the Administrator determines to be facility or plantship including part or all notice of the initial decision to the. reasonable and appropriate; - licensee and to each Federal department of any right of way which may have been granted In and agency.. and to the Governor of each 981.540 Transfer of license conjunction with such adjacent coastal State to which notice Upon application a license issued license. However, such surrender or was issued under paragraph (e]. under this part may be transferred if- the relinquishment shall not relieve the licensee of any obligation or liability [8) Acceptance will be deamed Administrator determines that such established by applicable law, or of any 1icensee transferings in the public interest and. that (1) The licensee will be deemed' the-prospective transferee meets ligation or liability for actions.taken conclusively- to have accepted the initial requirements and. the prerequisites to by him prior to such surrender or relingquishment or during removed decision of the Administrator if the issuance, of this part When a licensee removal of any components required to licensee does not notify the- Intends to apply for transfer of the be disposed of or removed pursuant to Administrator within 30 days after license the licensee and the prospective this Part. issuance of the written notice to the- transferee shall consult with the licensee under paragraph (f)(2) of this Administrator regarding applicability -of If part of all of a right of way section.. that the licensee objects to the the, requirements -of this part, to. the which is relinquished. or for which the initial decisions any objection filed by a proposed transfer license is surrendered. to the- licensee must state in writing Administrator under paragraph (d](1) of (1) Why the initial decision is legally 981.550 Sunspension revocation this section contains an electric. inconsistant with_ the act or this part termination relinguishment or surrender of transmission cable or pipeline which is and used in conjunction with another license (ii) Information concerning. any (a) Suspension or revocation for an C facility, the-Administrator underlying factual. issue deemed by the Whenever a licensee fails, to comply shall allow the. other licensee. an licensee to be necessary to the 7 with any applicable provision of the Act opportunity to add such right of way to Administrator's decision upon the or. any applicable rule , restriction. or his license before informing the objection license term or condition issued or Secretary of the Interior that the right of (2) The Administrator will promptly imposed by the Administrator under, this way has been vacated. take action on any licensees objection Part the Administrator may request that which meets the requirements of - the Attorney General Me an action in an Subpart E- Formal Hearing paragraph (8)(1). If the Administrator- appropriate United States district court Procedures determines that- there -exist one.or more. (1) To suspend the license: -or 981.580 Formal hearing. procedures specific and material issues of fact - (2) To revoke such license, if such pertaining to the initial decision on the failure. is knowing and continues for a (a)(1) General All formal- hearings proposed modification or revision.. period of 30 days after the, described in 981.350 and 981.525 of which must be resolved by a formal Administrator sends- notification of such this part are governed by 5 U.S.C. 354 evidentiary hearing the Administrator failure by registered letter to the through 557 and the procedures will provide for a formal hearing which licensee at his record post-office. contained in this section. will proceed in accordance with Subpart, address. (2) Hearings held under this section E of this part except that for the (b) Automatic operation of license will be consolidated insofar- as purposes of a formal hearing under this terms . The Administrator may provide practicable with hearings held by other section. references in. Subpart E to: in the. terms of a license for automatic agencies. (i) The "applicant" will be deemed to suspension or termination of the license (b) Decision to hold a hearing mean the licensee upon the occurring of a fixed or (1) Whenever, after holding an (ii) The " application" will be deemed agreed upon condition. event. or time. in informal hearing under- 981.340 of this to- mean the modification or revision of such cases. judicial proceedings under part. the Administrator determines that the license": and paragraph (a) of this section are not there are one or more specific and (iii) "Issuance. transfer- or renewal of required to effect a suspension or- material issues of fact pertaining to the a license" will be deemed to mean termination. application which must be resolved by a "modification or revision of a license." (c) Emergency orders the formal-hearing. he will provide for a (h) Final action by the Administrator Administrator may order the licensee to formal hearing. (1) After the close' of the 300-day period cease or alter construction or operation (2) Whenever. under 981.525 of this described in paragraph [g][1] of this activities p ending the completion of a part- the -Administrator determines that section, or after taking action on a judicial proceeding pursuant to there are one or more. specific. and 147 / Friday July 31. 1981 Rules and Regulations 394t2 Federal Register / VoL 46, No. material issues of fact pertaining to the participate as an interested person in a (i) The NOAA General Counsil proposed modification or revision to the proceeding, by allowing, denying, or (ii) The applicant and terms or conditions of the license which limiting such participation; (iii) Any other persons determined by must be resolved by a formal hearing (3) Hold conferences in accordance the judge. in accordance with -paragraph with paragraph (i) of this section for the (f)(2) below. to be eligible to -participate (3) The record developed in any. simplification or if appropriate, as a full party. formal hearing, under this paragraph will settlement of the issues by consent of (2) Any person desiring to be part of the basis for the the parties or to otherwise expedite the Administrator's decision to approve or proceedings; participate as a party in a formal deny issuance modification, or revision (4) Administrator oaths and affirmations hearing must submit a request to the of a license, as applicable. (5)Rule upon requests for and issue judge to be admitted as a party. Such (c) Assignment of Administrative Law subpoenas for the attendance and person will be allowed to participate as judge Upon deciding to hold formal testimony of witnesses and the a party if the judge finds that the hearing the Administrator will refer the production of book records and other interests of justice and a fair proceeding to the NOAA Office of evidence upon proper application under determination of the issues would be served by granting the request Administrative Law judges for paragraph (p) of this section The judge will give special consideration to assignment to an Administrative Law (6) Rule on discovery requests. each request from a designated adjacent judge [judge] to serve as presiding establish discovery schedules and take officer for the hearing. or cause to be taken depositions or. coastal State to participate as a party. (d)Notice interrogations [ii] Any request to participate as a (1) The Administrator will publish (7) Rule on requests for protective party must be submitted to the judge public notice of the formal hearing in the orders to protect persons in the within 10 days after the date of mailing Federal Register at least 15 days before discovery process from undue burden or or publication of notice of a decision to the beginning of the hearing and will (8)Require at or prior to any hearing hold a formaal hearing under paragraph send written notice by registered or the submission and exchange of (d) of this section whichever occurs certified mail or by personal delivery to evidence. later. The judge may entertain a request (i] Each applicant (9) Rule upon offers of proof and submitted after the expiration of the 10 (h] The Governor of each adjacant days, but such a date request may be coastal state evidence and recieve exclude and limit granted only upon an express finding on (iii) Each person who submitted evidence as set forth in paragraph (1)(3) the record that: written comments upon the application of this sections (A]Special circumstances justify or testified at any prior informal hearing (10) Introduce documentary or other granting the request an the application: and evidence into the record: iv) Each person who requests a copy (11) Examine and cross-examine (B)The interests of justice and a fair of the notice witnesses. [2] Notice of a formal hearing will (12)Consider and rule upon motions, determination of the issues would be served include, among other things procedural bound by all prior written agreements- by granting the request; [h] time and place of the hearings matters: (C) The requester has consented to be (ii) The issues in dispute which are to (13)Take such measures as may be bound by all prior written agreements be resolved in the formal hearing necessary (such as sealing portions of and stipulations agreed to by the (iii) The due date for filing a written the hearing record)to protect existing parties and all prior orders request to participate in the hearing in information consisting of trad secrets entered in the proceedings; and accordance with paragraphs (f)(2) and or commercial or financial information (D) Granting the request will not (f)(3) of this section; and which is privileged or confidential. cause undue delay or prejudice the (iv) Reference to any prior informal rights of the existing parties. hearing from which the issues to be (14)Schedule the time and place of (3)(T) Any interested person who desires to submit evidence in determined arose. the hearing (in accordance with the a formal hearing must submit a request to the (e) Powers and duties of the Act), or the hearing conference, continue judge within 10 days after the date of administrative law judge. Judges have the hearing from day to day, adjourn the mailing or publication of notice of a all the powers and duties neccessary to hearing to a later date, or a different decision to hold a formal hearing. preside over the parties and proceedings time before issuance of the whichever occurs later. The judge may and to conduct fair and impartial recommended or initial decision, having waive the 10 day rule for good cause, hearings, as specified by 5 U.S.C. 554- due regarq for the convenience and such as if the interested person, making 557, and this section including the power necessity of the parties, this request after the expiration of the 10 to: (15) Establish rules, consistent with days, shows that he lacked actual (1) Regulate the course of the hearing applicable law, for ,media coverage of knowledge of the formal hearing during and the conduct of the parties. the procedings and for the closure of the 10 days and the evidence he interested persons and others submitting the hearing in the interest of justice. proposes to submit may significantly evidence, including but not limited to (16)Strike testimony of a witness affect the outcome of the proceedings. the power to require the submission of refusing to answer a question ruled to be (ii) The judge may permit any part or all of the evidence in written proper: interested person to submit evidence at form if the Judge determines a party will (17) Make and file decisions in any formal hearing if the judge not be prejudiced thereby and if conformity with this subpart and determines that such evidence is otherwise in accordance with law (18) Take any action authorized by the relevant to facts in dispute concerning (2) Rule upon requests submitted in rules in U.S.C. 554 through 557 an issue being adjudicated. The fact that accordance with paragraph (f)(2) of this an interested person may submit section to participate as a party or (f) Hearings; Participation. evidence under this paragraph at a requests submitted in accordance with (1)Parties to the formal hearing will hearing does not entitle the interested paragraph, (f)(3) of this section to include: person to participate;in other ways in Federal Register / Vol. 46, No. 147 Friday, July 31, 1981 Rules and Regulations 394,13 the hearing unless allowed by the judge (2) Failure to appear. (i) Limit the number of witnesses under paragraph (f)(3)(iii) of this section. (i) Absent a showing of good cause. whose testimony may be cumulative. (iii) 'Me judge may allow any failure of a party to appear at a hearing: (ii) Strike argumentative. repetitious, interested person to submit oral (A) Constitutes waiver of the right to a cumulative-qinintaterial. non-probative. testimony, oral arugments, briefs. or to hearing under this section: or irrelevant evidence cross-examine witnesses or participate (B) Constitutes consent of the party to (W) Take necessary and proper in other ways if the judge determines the making of a decision on the record of messurses to prevent argumentative, that the interests of justice and a fair the hearing; but - repetitious. or cumulative cross- determination of the issues-would be (C) Will not be deemed to be a waiver examination: and better served by allowing such of the right to be served with a copy of (iv) Impose such time limitations on participation by the- interested person the judge's decision. arguments as the judge determines (iv) certification of issues. Whenever a - (ii) If a party fails to appear for a appropriate. having regard for the formal. hearing is conducted pursuant to hearing the judge will cause to be volume of the evidence and the this section. the Administrator- will- placed in the record all of the facts importance and complexity of the issues certify the issues for decision to the concerning the issuance and service of involved. Judge. and the formal hearing will be the notice of the time and place of the (5) Argument. At the close of any limited to those *issue& hearing formal hearing any party shall. be- given (h) Obligation to submit, evidence and (3) Evidence the opportunity to. submit written raise issues before a formal hearing is on issues before the judge. held. No party or interested person may (i) The order of presentation of arguments evidence will be at the judge's. (6) Official notice may submit evidence which was act, discretion. be- taken of any matter not appearing in submitted previously for the- (ii) The testimony of witnesses, will be evidence in the record. which is among administrative record as part A the. comment am the application for . upon oath or affirmation administered the traditional matters of judicial notice, issuance transfer or renewal of a. by the judge. and will be. subject to such or concerning which the Department of license, unlessm the. judge finds that good cross-examination: as. may be required Commerce by reason of its functions, is for a full and true disclosure of the, facts. deemed to-be expert. or of a non- cause, exist& for the failure to submit it. The formal rules of evidence do not privileged document required by-law ta Good-cause includes the case where the apply. but the judge-will exclude be filed with. prepared or published by a person seeking to raise the new issues- evidence which is. immaterial, irrelevant. government body, or of any reasonably or introduce new information shows that the person could not reasonably have non-probative. or unduly repetitious. available public docament.- The parties Hearsay evidence is not admissable will be given adequate notice. at the ascertained the issues. or made the - information available at a prior stage in. -as such hearing or otherwise before the judge's the administrative process or that: the . (iii) If a party objects. to the admission decision. of the matters so noticed and. person could not have reasonably or rejection of any, evidence. or to the- upon timely request by a party will be limitation of the scope of any given reasonable opportunity to show anticipated, the relevance -or materiality of the information sought to be examination or cross-examination or the the contrary introduced. failure to -limit such scope, the parry (7) Record (i) The judge or the must state briefly the grounds for Administrator will arrange (1) At any time the jusdge considers. objections. Rulings on each. objection. verbatim tape or other record of any appropriate. he may upon his own will appear in the record- oral hearing proceedings. An official. motion or the the motion of any party or (iv) Formal exception to. an adverse transcript of the proceedings will be interested person. direct the parties and- ruling is not required prepared and copies may be obtained interested persons or their attorneys to (v)At any time during the- upon written request filed with the meet (in person. by telephone procedings the judge- may require a reporter and upon payment of the fees at conference call. or otherwise) in a party or a witness to state his position the rate provided in the agreement with conference to consider - on any issue- and the theory in support the-reporter. (i) Simplification of the issues; of such position. - (ii)-The official transcript. exhibits. (ii Settlements in appropriate cases, (vi) Upon the failure of a party or briefs, reply briefs, proposed. findings of (iii) Stipulations and admissions of interested person. to effect the fact. requests and other documents and fact. and contents and authenticity of appearance of a. witness or the papers filed will constitute the exclusive documents; production of ado - or other- record for decision on the issues - (iv) Exchange of evidence - witness evidence ruled relevant and necessary concerning, which the hearing was held list and summaries of expected to the proceeding. the judge may take (iii) The record developed in any appropriate action, as authorized by- hearing held pursuant testimony to 981-350 of this (v) Limitation of the number of law. part will be part of the basis for the witnesses: and (vii) The parties- may, by stipulation Administrator's decision to approve or (vi) Such other matters as may tend to agree upon any facts involved in the deny the license. expedite the disposition of the- proceedings and include, them in the (k) Interlocutory appeals. proceedings. record with the consent of the judge (l) At the request of a party or an the (2) The record will show how the Written stipulations shall be signed in- judge's own motion. the judge may matters were disposed of by order, and accordance with paragraph (r)(2) of this certify to the Administrator for review a by agreement in such conferences. section.. and shall be served upon all ruling which does-not finally dispose of (j) Appearance and parties of record within the time period the proceeding if the judge determines presentation of evidence. specified by the judge. that such a ruling involves a controlling (1) Representative. A party or (4) Authority of judge , to expedite question of law and that an immediate interested person may appear at a adjudication to prevent appeal therefrom may materially, hearing under this Part in person. by- delays or an unnecessarily large record. advance the ultimate disposition of the attorney, or by other representative; the judge mar. matter. ------------ 39414 Federal Register / VoL 46 No. 147 / Friday, July 31. 1981 Rules and Regulations (2) Upon certification by the judge of Administrator may defer announcement testimony of witnesses and for the an interlocutory ruling for review. the of hii final decision an the findings of - production of documentary or other Administrator will expeditiously decide fact until.the time he takes final action evidence. Applications for subpoenas the matter. taking into account any on the issuance. transfer or renewal of a must be in writing, and must specify the briefs in this respect-filed by the. parties license. general relevance and reasonable scope within 10 days after certification. The - (m) Motions and requests. Motions of the evidence sought to be produced. Administrator's order on an and request must be filed in writing (I Extension of time. The time for the interlocutory appeal will not be with the judge or must be stated orally Ming of any document under this section considered the final decision of the' and made part of the hearing record. may be extended by the judge if.' Administrator except by operation. of Each motion or request must state the (1) The request for the extension of other provisions in this section. particular order. ruling. or action time is made before or on the final date (3) No interlocutory appeal will Us as desired. and the legal and-factual allowed for the filing, and to any ruling not certified to- the grounds therefor. (2).The judge. after giving written or Administrator. by the judge. Qbjections (n) Witnesses and fees. Witnesses oral notice to- and considering the views t rulings not certified- to the-. subpoenaed will be paid the same fees of ail other parties (when practicable), Administrator by the judge-will be a and mileage. and in the same manner. determines that there is good reason for as part of the.record and: will be subject to are paid for like -services in the District the extension. review -at the same time. and in -the same- Court of. the. United States. for the (r) Filing, submission and service of manner as the Administrator's review of district in which the hearing is located. documents the recommended at initial decision of' (a) Depositions. rhenever the regulations-in this the judge - Any party. desiring to take the (1) subpart of an order issued hereunder Decision. deposition of a witness- shall make require a document to be filed within- a (1) Proposed findings of facr. The application in writing. to the judge, cartain period of time. such, document judge will allow. each party to Me with setting forth -the reasons why such will be considered. filed as of the "to of the judge proposed findings of fact deposition should be taken: the time the.postmark. if mailed. or (if not together with a supporting. brief ` when, the place. where.. and the name the reasons for such and mailing address of the person mailed) as -of the date actually delivered expressing proposals. Such proposals and briefs before whom the deposition is requested to the office where Ming require& Time periods will begin to- run on the must be filee on or before the date to he taker: the name and ad of 'day fallowing the date of the document specified by the judge. Such proposals each witness to appear for deposition= or event which begins the time period; and briefs must refer to ad portions of and the subject matter concerning which (2) All submissions must be signed -by the record and to all authorities relied - each witness is expected to testify. upon in support of each proposal. Reply. (2) Depositions- may- be taken. orally or tha person --skin thesubmiseianarbqy briefs must be submitted within 10 days upon written. interrogatories before any the qperso0qes attomey or other authorized after receipt of the proposed findings to person: designated by- the -judge, agent or representative. which they responding unless. tile judge (3) Such notice as the, judge shall (3)6q&qmica of a document must be allows additional time, order will be given for the taking of a made by delivering or qmstilqin a copy of (2) Recommended decision; As soon. deposition. but this ordinarily will not the document to the known address- of an practicable. but normally not later be less than 5 days' written notice when . the person being. served- than 30 days after the close of the record the depositions to be taken within the-:: (4) Whenever the regulations in thqi&- cord in. the procedings, the judge- will- United States and ordinarily will not be Sabqnart-require service of a document- evaluate the record of the formal- less than 5 days written notice when such service may effectively be made on hearing and prepare and- file it the deposition is to be taken elsewhere. the agent for the service of process or an the attorney-for the person t be served. recommended decision with- the- (4) Each witness testifying upon. Administrator. The forma hearing must deposition. will be sworn and any party- (51 Refusal of service of a document- be concluded within 240 days after the - will have. the right to. cross-examine. by the person to be served. his agent or publication of the notice of application, The questions. propounded and. the attorney, will be deemed effective pursuant to 981.290(a)of this part. answers thereto. together-with all. service of the document as -of the date of (3) Final decision. objections. made, will.be reduced to such refusal (i) As soon as practicable but'. writing , read to the witness, signed by (a) A certificate of the person serving; normally not later than 30 days: after- the witness unless waived. and certified the document by personal delivery or by by the person presiding.. Thereafter-the, mailing, setting forth the receipt of the recommended decision. manner of the the Administrator will issue a final person presiding will deliver or =ail a service. will be proof of the service- decision. The final. decision may accept copy of the document! to each, party. or reject ail or part of the recommended" Subject to such objection to the decision.' questions. and answers as were noted at (a) "Exparte communication' means (ii). The Administrator will base the the time of taking.the deposition.which an oral or written communication not an final decision upon the record already would be. valid were the witness the public record with respect to which made. except that the Administrator personally present and. testifying such. reasonable prior notice to allparties is may issue orders: be-read and offered in not given. but does. not include requests (A) Specifying the filing of: evidence by. any party taking it as for status reports. supplemental briefs or: against any party who was present.or (b) Except to the extent required for (B) Remanding the matters to a judge represented at the taking. of the disposition. of ex parte matters as for the receipt of further evidence. or for deposition who had due notice authorized by law, upon assignment of a other. assistance in the determination of thereof. matter.to an administrative law-judge the matter. (p) Subpoenas. A party may request and until the final decision of the - (iii) With respect to hearings to the-judge to issue or the judge on the Administrator is effective under these resolve material issues of fact pursuant judges own motion may issue a regulations, no ex parte communication to 981.350 of this part, the subpoena for the attendance and relevant to the merits of the proceeding 0 Register Vol a No. 147 Friday, July 31. 39415 Federal Rules and Regulations shall be made. or q@qmqbwqinqgly caused to for each violation. against any person grounds for an inability or failure to rile be made: found to have-carnimitted an act within the time period All extensions (1) By the judge or by an agency prohibited by section I8qM oqf the Act will. be in writing. Except as provided by eqTiqyee involved in the decisional Each day of a continuing vicqiation is a this, parasgrapqil. by I q981.q3-0q0(bq) of this process of the proceeding to any separata, offense. part or qbq@ Order of an adqmin stratqive interested person outside 6qNOAA. or (q2) Section 1q1q1 of the-Act describes law judge, aa requests for an extension (2) By an interested person outside the circumstances under which the oqf tirqm may be granted. qMqOAA to the judge or to arty agency Administrator may suspend or terminate employee involved in, tqEer decisional a license. or seek revocation of a 590 AseswnM procedure. m of the proceeding. licqeirse. fbr violation of the-Act or of anq7 (a) Notice o2qfyqibqld6qdon- and assessment ()Tqhe judge may, not ccnsult-any reqgdatioq= restriction or condition (NO 8qV2qA). perorr oqr party an a fact in, issue unless issued unqderthe-Acqt (q1) A-1-q4oqfqice oqf violation and on notice and aqppo4qf4qti0qmqity for all parties. q(3)Sectqion-q38qMaqftqheActautborizes assessment (N0qOVAq7 will he issued by to participate. % - the Administrator to issue. orders the Airnirli trator and -served personally Cdl An agency employee- or fudge who directing any person subject to. section or by registered or certified mail. retq= makes or receives a prohibited .q38qM of the Acrqta comply with the Act, or communication qmTqM pqlaca in. the any role. reqgtilatqiq= order. license. tern recelpt requested. upon the person hearing Yeqwrqd the coqm0qqtmqication and or cq=qdqitqion issued under the Act. alleged to be subject to a civil penalty any response qdqwreto. and the judge. or- Section q302 aqLicrauthorqizes the (the respondent). A copy oqf the. NCVA Aim stralor. as aqppro rqiateq@ may take. Arqiyni-i tratqm-to bring a civil action qTqhe Will sirailarlqy., qbe served upon an actirqin tqhqiarrespec4qTronsqistentwqitqir appqmrqiaqter reqlfeqL qIncqiuqdqinqg temporary affecteqd-0q&.ansee. or the owner oqf an these reqgulatfonq% the-Act, and q5- U.S.0qC@ or permanent injunctive relqieq4 to halt or affecteqdvesaeql (defined in paragraph 536(d). and qS0qMqdqT. , ': . - . II recqiress any such violation. of this section), if the qlice-m ee or owner (e) Tqbqis-secqdou does-not- apply- tor - q(4qT Section 1q10 oqf the Act authorizes is not, the respondent. Although no -municatqicns to or from the atqtoqmleqy- the Administrator toqpface observers specific form is prescribed. the NOVA representing tqh tDrqJqM-.tqfqM aceqw thermal energy conversion will q=ntaqin-. - pweqdinqgs (agency. representatq!q")_ qfacilqitqfesr and qpqlantsqhqips licensed under- q(1q1 A concqiser statement oqi the facts qHowver.tqhe agency representative the Act to monitor caiqii'6qOqhmce and- believed to show a vqiaqlatic= =y=t 6q=ticiqpate or quqtvqtse in the- environma:o0qW effects 4q& activities under (qlqiq)-8qA specificreqferenceqo the orrecommenqdeqd-qdec6qWon-oqf the the license. provisions of the AcqL reqguqlatqicn-qlqicanse. judge or tqhe A6qAqmqiniztratoe:s@revqievw (5q11Secfqjcq= q1q14 of tqhe Act describes or ordqw aqlqlegecqgy violated,- - therqi, qmuqmot as witness. orccuqmeqi in. e - , -rr tances zqmder which a person. (iiiqf The qfqmqdqUL6qp and carqnqiusqions the prczedqiq@0q&qirt ac:coreq=q=- with them- qMaT bring ar civil. action against an uqpcm whqicq!r the Acizaird traqqm based the alleged vqibqator-or agaqirqfat the Administrator for failure to perqfaqm a Proposed- asaessment: and' (qMq) qPqwaqgraqpqhs 8qM Irmo (dq) oqi I- q(qtvq) The amount of penalty proposed ecdm do not apply to cq=mn-nica-dons, actiqdqiscredonaqy duty. and directs. the to be assessed. cncnqinqg natqionaqi delq;evse at foreagm A rimini trator to qissue-reguiatqions- policy qmatteqm Sucqh.qR6qk Parts - . .I rq6cetqhires prereqqqqtzite, tcr (q2) W-qUh. respect to the. aniount of c2qMqI Cnm=mqJCatqLonq&- s4qz4q=r6q= actfoqm penalty. the Aqdmqinqis0quaor will'taqke into (i) On national d0qdqensqe or qforeiqgm' (q6q1 The regulations in this Subpart account qirqdarmatqioqn. available; to the policy matters to or from, an agency provideqmu0qf0qforqm rules and procedures-. agenrr,; concerzqing, qdia =,atqm-;q-- eMiuyeLI Or for the assetrtment of civil oenaqlqdes aira@imataricqm extent. and gravity of the qM From employees of the United (I qJ q94qM.qZqgqe and q90qM.54qw of this partq@. prohibited qwts q=qmqmqittad anzqi. w iqtqIl States Government qinqwqbrinqg int2r- establishment of license sanctions - respect, to tqhemsponqdeqnt. the degree of governmental neqgotiatqionu (qJ qS0qM-310 of this part). issuance of culpability, any qwatory of prior offenses. are permitted- if the coznqmunqicatc2qWs. compliance orders (I q9q8q1.2q= of qdlqis ability to. pay, and such other matters as. pi part).- placement of oqbsq- den With, reqnect to those matte= eqmrs an or in- justice may requqiqm Cannot otherwise be faqiqn8qyqpreseqnteqd fci 4qO6qT0qM facilities and qpqlantsb8q#a (3) The NOVA may also contain an I1pI. q9q80qL4q&1q0 of this part)-, and the giving oqi initial proposal for q7 reasons aqf qfcr0q06qp qpoqiqft;q7 or national compromise or dfe. advance trotqics oqi prqfvaqteicqivqil actions settlement of the case. The 14. (1 qg4qm.q30qw oqf qtqb:qfs Part). (2) Eqz Parts comqmunqmatqions suqbqiect -A,q4-ini trator may also aqtqtaCqI3 to paragraph (qfq) oi qtq1iqi section shall be (qb) 8qFqiqlqh72qg and se.-lqice of 2qdcczqmze??tr. documents which 2qWuqmqinate the facts made a, part oqf the public recowqd to the (1) qFqi0qf0qt and servqic oqi doczqments believed to show a violation. The NOVA L extent that they do nat incq4uqde required q1:6q7 this Subpart shall be U'? will advise- of the respondent's rights at mf==tqfan 0qdaqnqiqfqie0qd qpurszanto, accordance with 2qH 9q81.q3q6q0(r) and that point in the proceeqdqn8q& qanqd will be 9q81.q2q38 oqi this part The meqdiod fqor Executive Order. 0qCasgiqfqfeqd information accompanied by a copy oqi regulations shall be included In a classified 2qpqor0qt0qk4qmq. computing time qperqrqioqds set forth in governing civil eqn2qiqoqrcqe-eqn t procedures. ai the record w2qh8qic6qhq@ qsha6qi6ql be available 36qH 0q94q84q104qzq-q,04qW0q(qr0qJ arid 12qMq.q1q1q504q9 of this part this Subpart. and the aqD a2qiqscr applies 0qfqa any ac4qtqon qor event qsquc6qiql p6qlicab2qiqs for review only iqm a r4qdancqs with as payment of qsq-8qdqvqi4qiqrqeqnqna4qlt6q7q-q, required provisions of Squ2qb0qpqa4qv 8qR o2qf this part- appqlqica0qb6qiqs law. by this Subpart to take- place w4qit2qh2qirrqe (44qWqJq-4q=qeduqrqeqs4q=qonqrqecqe2qjq.qDt6qq4qia Subpart 2qF-6qEqnfqorcqemeqat Procedures qspeci6qf6qfed 8qpeqr8qiqodq-o4qf time. 12qV16qC 04qVqI12qtq-I (2) If an oral qorwr8qitteqn request is (I I The respondent shall have 0q30q0 da yqg I q98I.qS0q84q0 4qGqeq"qe4qM0qL made to the Aqcirnin stratqcr within io f6qiom-rqecqe2qiqDqt qof 0qthe NOVA in which q-o, (a) Purpose and scope. days after the expiration qofqa time respond. during t6qhis time t6qhe rqes2qpqo8qn'dqent (q1q1 Secqt8qiqcqir08q=o4qf t4qhqeAqct atqrthqcqr2q@zqssq- period established 8qiz this Subpart 6qfqor may- the Administrator to assess a civil the required 0q212qiqn2qg of dqoqcqume0qn6qiqsq, the (2qi4q) Accept the prqoqDqoqsedpenaltqy or qpenair2q7q@8qtqnq-aqrqramqoqunqtqnqcqtqtqtqoexqcqeed Ad0q-qlqr0qistrqatcqrmqa8qyq,8q;eqrm8qi0qt a late filing if compromise penalty, qi2qf any, 0qb4q7 taking twerit2q7-2qf0qmqe t0qhqoqnsqaqn0qdq* dollars. (8qS04qMq00q006q1 the A0q60q=8qiqn8qiqs8q=tqcqrqtq-qzqdqz reasonable the actions specified in the NOVA; 39416 Federak Reguster Vol. 46 No. 147 Friday, July 31, 1981 Rules and Regulations (ii) Seek to have the NOVA amended or modified as prescribed in paragraph (b)(2) of this section: (iii) Request a hearing, as prescribed in paragraph(b)(5) of this section: (iv) Take no action, in which case the NOVA becomes final in accordance with paragraph(c) of this section: or (v) Request an extension of the time allowed to respond to the NOVA under paragraph (b)(3) of this section. Options (ii),(iii),(iv), and (v) above may also be exercised by the affected licensee or the owner of an affected vessel. (2) The responden, the affected licensee, or the owner of an affected vessel, may seek amendment or modification of the NOVA to confirm to the facts or law as that person sees them by notifying the Administrator at the telephone number or address specified in the NOVA. There amendment or modification is sought, the Administrator will either amend the NOVA or decline to amend it, and will so nofity the respondent, affected licensee or owner, as appropriate. (3) The respondent affected licensee or owner of an affected vessel may, within the 30-day period specified in paragraph (b)(1) of this section, request an extension of time to respond. The Administrator may grant an extension of up to 30 days, unless the Administrator determines that the requestor could, exercising reasonable diligence, prepare a response within the 30 day period specified in paragraph (b)(1) of this section. If the Administrator does not respond to the request within 48 hours of its receipt by the Administrator; the request will be granted automatically for the extension requested, up to a maximum of 30 days. A telephone response to the request within the 48- hour period will be considered effective responce, and will be followed by written confirmation. (4) The Administrator may, for good cause, grant an additional extension beyond the 30-day period specified in paragraph(b)(3) of this section. (5) If the respondent, the affected licensee or the owner of an affected vessel wishes a hearing, a written and dated request shallbe served either in person or by certified or registered mail return receipt requested, at the address specified in the NOVA. The request shall either attach a copy of the relevant. NOVA or refer to the relevant NOAA case number. (6) Any denial, in whole or in part, of any request under this section which is based upon untimeliness will be made in writing. (7) The Administrator may, in the Administrator's discretion treat any communication from a respondent an affected licensee, or owner of an affected vessel as a request for a hearing under paragraph (b)(5) of this section. (c) Final decision. (1) If no request for hearing is filed under paragraph (b)(5) of this section, the NOVA becomes effective and constitutes the final decision and order of the Administrator on the 30th day after service of the NOVA, or on the last day of any delay period granted under 981.580(b)(2) of this Subpart or paragraph (b)(3) or (b)(4) of this section. (2) If a request for hearing is filed in accordance with paragraph (b)(5) of this section, the date of the final decision will be as provided in 981.500 of this Subpart. (d) Payment of final assessment. (1) Respondent shall make full payment of the civil penalty assessed within 30 days after the date upon which the assessment becomes effective as the final decision and order of the Administrator under paragraph (c) of this section or 981.600(k) of this part or, if judicial review of the assessment is initiated under section 302(b) of the Act during the 30 day period, within 10 days after the appropriate court has entered final judgement in favor of the Administrator, unless the court's order provides otherwise. Payment shall be made by mailing or delivering to the Administrator at the address specified in the NOVA a check or money order made payable in United States currency in the amount of the assessment to the "Treasurer of the United States." (2) Upon any failure to pay the civil penalty assessed, the Administrator may request the Attorney General of the United States to recover the amount assessed in any appropriate district court of the United States, or may take action under paragraph (e) of this section. In any court action under this paragraph (d)(2), the validity and appropriateness of the final order imposing the civil penalty is not subject to review. (e) Compromise of civil penalty. (1) In the Administrator's sole discretion, the Administrator may compromise, modify, remit, or mitigate with or without conditions any civil penalty which has been imposed under this Subpart, or which is subject to imposition. (2) The compromise authority of the Administrator under this paragraph (e) is in addition to any similar authority provided in the Act or in these regulations and may be exercised either upon the initiative of the Administrator or in response to a request by the alleged violator or other interested person. (3) If the Administrator acts under this paragraph (e) prior to issuing a NOVA or after a final assessment becomes payable under paragraph (d) of this section, the Administrator will prepare a document indicating the reasons for the action taken and citing this paragraph and section 302(c) of the Act as authority. Once the case has been assigned for hearing under 981.600(a) of this part, the Administrator will except in unusual circumstances, defer any compromise action under this paragraph (e) until the administrative law judge has rendered an initial decision in the matter. Neither the existence of the compromise authority of the Administrator under this paragraph (e) nor the Administrator's exercise thereof at any time changes the date upon which an assessment becomes final or payable. (f) Application of this section to licensees and vessel owners. (1) This section applies to affected licensees. "Affected licensee" means the holder of a license issued under this Part which license may be subject to sanction as a result of civil penality proceedings under this Subpart. (2) This section also applies to owners of affected vessels. "Affected vessel" means any vessel of the United States that under section 302(e) of the Act may be liable in rem for any civil penalty assessed as a result of civil penalty proceeding under this Subpart. 981.600 Hearing and appeal procedures (a) Beginning of hearing procedures. Following receipt of a written request for hearing timely filed under 981.590(b) of this part, the Administrator will begin procedures under this section by forwarding the request a copy of the NOVA, and any response thereto to the NOAA office of Administrative Law Judges, which will docket the matter for hearing. Written notice of the referral will be given promptly to the respondent, the affected licensee, and the owner of an affected vessel(if the affected licensee or owner is not the respondent), with the name and address of the attorney representing the Administrator in the proceedings (the agency representative). Thereafter all pleadings and other documents shall be filed directly with the NOAA Office of Administrative Law Judges, and a copy shallbe served on each party. (b)Ex parte communications. Upon assignment of the case to an administrative law judge and until an assessment or other action on the matter Federal Register / Vol. 48. No. 147 / Friday, July 31, 1981 / Rules and Regulations 39417 becomes effective under these regulations as the final decision of the Administrator, ex parte communications are governed by 981.570 of Subpart E of this part. However, 981.570 of this part will not be interpreted to diminish the Administrator's compromoise authority under 981.590(e) of this Subpart. (c) Duties and powers of judge. (1) To the extent consistent with this Subpart, the administrative law judge has all powers and responsibilites emumerated in 981.580 (e) of Subpart E. of this part, except that paragraph (e)(2) thereof does not apply. Instead, the judge has the power to rule on a request to participate as a party in the proceedings by allowing, denying, or limiting such participation, except that the respondent, the affected licensee the owner of an affected vessel and the agency representative will be parties. The judge will prior to ruling on a request to be admitted as a party ascertain the views of the other parties and base the ruling on whether the request is from a person who could be directly and adversely affected by the final decision and who may contribute materially to the disposition of the proceedings. (d) Participation by parties. (1) The respondent, the affected licensee, the owner of an affected vessel the agency representative and to the extant permitted by the judge any other party, may appear in person, by counsel or by other representative, and may examine and cross-examine witnesses to the extent required for a full and true disclosure of the facts present documentary or other evidence in support of that party's case or defense, and conduct oral argument at the close of testimony. This paragraph shall not be interpreted to diminish the powers and duties of the judge provided in paragraph (e) of this section. (2) Failure of any party to appear at the hearing will be deemed a waiver of the right to a hearing and consent to the making of a decision on the record of the hearing. (e) Appearance and presentation of evidence. Appearance and the presentation of evidence are governed by 981.580 (j) of Subpart E of this part. (f) Settlements. An agreement by respondent and the agency representative to settle the matter if filed before an assessment or other action in the case becomes effective under these regulations as the final decision of the Administrator, will terminate the proceedings and vacate any initial or administrative appeilate decision issued. However, if settlement is reached before the judge submits the initial decision and certifies the record under paragraph (i) of this section, the judge may require submission of a copy of the agreement solely to assure that the judge's consideration of the case is completed and to order the matter dismissed on the basic of the agreement. (g) Intarlocutory appeals. Appeals of interlocutory rulings by the judge under this subpart are governed by 981.580(k) of Subpart E, except that objections to rulings not certified to the Administrator by the judge are subject to review at the same time and in the same manner as the Administrator's review of the initial decision of the judge upon any appeal therefrom under paragraph (j) of this section. (h) Proposed findings and conclusions. Unless a differenct schedule is established in the discretion of the judge, the parties must file any proposed findings of fact and conclusions of law, together with supporting briefs, within 30 days after the judge closes the hearing. Any reply briefs msut be submitted within 15 days after receipt of the proposed findings and conclusions to which they respond unless the judge sets a different schedule (i) Initial decision (1) After expiration of the period provided in paragraph (h) of this section for filling reply briefs, the judge will render a written initial decision upon the record in the case setting forth: (i) Findings and conclusions and the reasons or basis therefor on all material issues of fact law, or discretion presented on the record. In determining the amount of a penalty assessment the judge is not bound by the amount proposed or assessed in the NOVA, or elsewhere, but will decide the matter de novo, stating the reasons in view of the factors set forth in section 302(c)(2) of this Subpart. (ii) Reasons for the rejection of findings and conclusions proposed by the parties: (iii) A statement of facts officially noticed and relied upon in the decision if the parties have not previously been advised of such notice; and (iv) Such other matters as the judge considers appropriate including recommendations, if any, regarding license sanctions and forfeiture actions. (2) The judge will submit the initial decision to the Administrator, serve copies on the parties and transmit to the Administrator the record of the proceeding together with a certification to the effect that to the best of the judge's knowledge and belief, the record is a complete and accurate compilation of all evidence and other documents in the proceeding, except in such particulars as are specified. (j) Appeals. (1) Any party may appeal the initial decision of the judge by filing a notice of appeal with the Administrator within 45 days after the date of the initial decision. The notice of appeal shall concisely state such exceptions as the appellant takes to the initial decision and shall contain citations to the record or other authority relied upon. The appellant shall serve a copy of the notice of appeal on each other party. (2)(i) The Administrator will decide the appeal upon the record already made, except that the Administrator may issue orders: (A) Specifying the filing of supplemental briefs; or (B) Remanding the matter to an administrative law judge for receipt of further evidence or other assistance in the determination of the matter. (ii) The decision of the Administrator will be in writing and will state the reasons for accepting or rejecting the exceptions taken by the appellant. To the extent the Administrator's decision is silent as to a material issue of fact, law, or discretion presented on the record, the decision will be deemed to adopt the findings and conclusions thereon, and the reasons or basis, therefor, contained in the initial decision. (k) Final decision. (1) Unless a notice of appeal is timely filed in accordance with paragraph (j) of this section the initial decision of the judge becomes effective and constitutes the final decision and order of the Administrator on the 45th calendar day after the date it is rendered. (2) If a notice of appeal is timely filed as provided in paragraph (j) of this section, the Administrator's decision becomes effective and constitutes the final decision and order of the Administrator on the date the decision is issued, or as otherwise specified by the Administrator in the decision. (3) Payment of any assessment which becomes final under this paragraph (k) shall be made in accordance with 981.590(d) of this part. (1) Application of this section to licensees and vessel owners. The provisions of this section apply to affected licensees and owners of affected vessels as defined in 981.590(f). 981.610 License sanctions. (a) Application of section. This section governs the suspension, revocation, termination or modification of any license issued under this part for 39418 Federal Register / Vol. 48, No. 147 / Friday, July 31, 1981 / Rules and Regulations failure to comply with any provision of the Act, or any regulation, order, license condition or restricition issued under the Act. (b) Basis for sanctions. (1) The Administrator may act under this section with respect to a license issued under the Act, if: (i) The terms of the license call for suspension or termination of the license upon the occurrence of a fixed or agreed upon condition, event or time and the Administrator determines that such condition, event, or time has occurred: or (ii) The Administrator determines in accordance with paragraph (d)(i)(ii) of this section that immediate suspension of the license or immediate suspension or modification of any activity under the license, is necessary; or (iii) An appropriate court issues an order of suspension or revocation with respect to the license. (2) The Administrator may suspend a license in accordance with paragraph (b)(1) and the other provisions of this section, on the basis that the licensee has failed to pay any penalty assessed or fine imposed, under section 302 of this Act. The license may be rainstated by affirmative order of the Administrator upon receipt, as prescribed in paragraph (d) of this section, of full payment of this penalty assessed, together with interest thereon at the annual rate provided by current regulations of the Department of the Treasury as to late payments of amounts due the Government, computed from the data payment first became overdue, or upon full payment in accordance with any applicable court order, of the fine imposed. (c) Nature of sanctions. In the Administrator's discretion and subject to the requirements of this section, the Administrator may take any of the following actions or combinations thereof with respect to a license issued under the Act. (1) Revoke the license; (2) Suspend the license, either for a specified period of time or until certain stated requirements are met, or both; (3) Modify the license, for examply by imposing additional conditions and restrictions in order to aid future enforcements efforts; or (4) Terminate the license in accordance with the provisions of this Subpart. (d) Notice of license sanction. (1) If the Administrator determines, on the basic of available information, that the licensee is not in compliance with any applicable provision of the Act, or any regulation, order or any license condition or restriction issued under the Act the Administrator may issue the licensee a notice of license sanction (NOLS) stating that the Administrator has requested the Attorney General to file an action in an appropriate United States district court, seeking a sanction against the license involved. The NOLS will state the sanction proposed by the Administrator to be imposed as provided in paragraph (c) of this section, and the basis therefor and will advise that issuance of the NOLS does not preclude the Administrator from taking, at any time, any other enforcement action under section 302 or any other applicable provision of the Act. (i) If the Adminstrator expects to seek revocation of the license, the NOLS will advise that: (A) If the violation set forth in the NOLS continues for a period of 30 days from the date of issuing the NOLS the Administrator may request the Attorney General to seek revocation of the license in an appropriate United States district court. (B) The licensee may within 30 days after the date of issuing the NOLS, submit to the Administrator evidence of compliance; and (C) If the Administrator determines, on the basis of evidence submitted during the 30-day period that the licensee has complied, the Administrator will not seek revocation of the license. (ii) The Administrator may immediately suspend the license or suspend or modify any activity under the license pending completion of judicial proceedings under section 111(a) of the Act if the Administrator finds, and issues an emergency order summarizing the finding and the basis therefor, that such action is necessary to: (A) Protect public health and safety; or (B) Eliminate imminent and substantial danger to the environment. (iii) If the Administrator acts under paragraph (d)(1)(ii) of this section, the Administrator will serve the emergency order in the manner described in paragraph (d)(4) of this section and will seek to expecite judicial proceedings. (iv) The licencse may request the Administrator to review any emergency order issued under paragraph (d)(i)(ii) of this section. The Administrator will determine whether any review of the emergency order should be granted, and whether any review granted will be in the form of an informal or formal hearing. The Administrator's granting of a review will not change the effective date of the emergency order unless the Administrator specifies such a change in writing when granting the review of the emergency order. (2) If the Administrator determines, on the basis of available information, that the licensee is not in compilance with the licnese, and if the license provides for a license sanction on the basis of such failure to comply, the Administrator may issue a NOLS setting forth the sanction to be imposed and the basis therefor. If an opportunity for a hearing is provided by paragraph (a) of this section the NOLS will advise that the licensee has 30 days from receipt of the notice in which to request or waive a hearing. The notice will further state the effective date of the sanction, which will not be earlier than 30 days after the date of the notice except as provided in paragraph (d)(1)(ii) of this section or in the license. If a hearing opportunity is provided and a hearing is requested in a timely manner, the sanction becomes effective under paragraph (b) of this section. (3) If a United States district court issues an order calling for a license sanction, the Adminstator will issue a NOLS setting forth the sanction to be imposed and the effective date of the sanction. The NOLS will advise that an appeal of the district court's orde will not stay the taking effect of the sanction, unless provided otherwise by the court. (4) The NOLS will be served personally or by registered or certified mail, return receipt requested, on the licensee. (e) Opportunity for hearing on an NOLS issued under paragraph (d)(2) of the section. (1) The lecensee has 30 days form receipt of the NOLS to request a hearing with respect to an NOLS issued under paragraph (d)(2) of this section. However, no hearing is required with respect to matters previously adjudicated in an administrative or judical hearing in which the licensee has been given notice and has had an opportunity to participate. (2) If the licensee wishes a hearing, a written and dated request shall be served on the Administrator either in person or by certified or registered mail, return receipt requested, at the address specified in the NOLS. The request shall either attach a copy of the relevant NOLS or refer to the relevant NOAA case number. (3) If no hearing is required by or requested under paragraph (e)(1) of this section, the Administrator may nonetheless order a hearing if the Administrator determines that there are material issues of fact, law or equity to be futher explored. Federal Register / Vol. 48. No. 147 / Friday, July 31, 1981 / Rules and Regulations 39419 (4) The Administrator may apply to the administrative law judge for an interim order suspending the license, or suspending or modifying any activity under the license, pending completion of proceedings under this section if the Administrator serves prior notice of the application for an interim order on the licensee in the manner described in paragraph (d)(4) of this section. The judge may issue an interim order consistent with the purposes of the Act, unless preliminary evidence presented to the judge indicates a likelihood that the licensee will prevail in the matters at issue. (5) If the license provides an effective date for the sanction a request for hearing will not delay the effectiveness of the sanction, except to the extent extended by the Administrator for good cause shown. (f) Hearing and initial decision. If a timely request for a hearing under paragraph (e)(1) of this section is received or the Administrator orders a hearing under paragraph (e)(3) of this section the Administrator will appoint a hearing officer to hear the matter and render an initial decision. (g) Appeals. (1) Any party may appeal the initial decision of the hearing offices by filing a notice of appeal with the Administrator within 30 days after the date of the initial decision. The notice of appeal shall concisely state such exceptions as the appellant takes to the initial decision and shall contain citations to the record or other authority relied upon. The appellant shall serve a copy of the notice of appeal on each other party. (2)(i) The Administrator will decide the appeal upon the record already made, except that the Administrator may issue orders: (A) Specifying the filing of supplemental briefs: or (B) Remanding the matter to a hearing officer for the receipt of further evidence, or other assistance in the determination of the matter. (ii) The decision of the Administrator will be in writing and will state the reasons for accepting or rejecting the exceptions taken by the appeilant. To the extent the Administrator's decision is silent as to a material issue of facts, law, or discretion at issue in the hearing, the decision will be deemed to adopt the findings and conclusions, and the reasons and basis therefor, contained in the initial decision. (h) Final decision. (1) Unless a notice of appeal is timely filed in accordance with paragraph (g) of this section, the initial decision of the hearing officer becomes effective and constitutes the final decision and order of the Administrator on the 30th calendar day after the date it is rendered. (2) If a notice of appeal is timely filed as provided in paragraph (g) of this section, the Administrator's decision becomes effective and constitutes that final decision and order of the Administrator on the date it is issued, or as otherwise specified by the Administrator in the decision. The Administrator will serve notice of the decision on the licensee in the manner described in paragraph (d)(4) of this section. 981.520 Compliance orders. (a) The Administrator may issue a compliance order, served personally or by registered or certified mail, return receipt requested to any person subject to section 301 of the Act who is found by the Administrator on the basis of available information to be in violation of the Act or any regulation order license term or condition issued under the Act or this Part. Although no specific form is prescribed the compliance order will contain: (1) A concise statement of the facts determinied to snow a violation: (2) A specific reference to the provisions of the Act regulation order or license determined to be violated: and (3) The time period in which the person shall comply with the order. (b) With respect to the time period for comliance with the order, the Administrator will specify a reasonable time period up to 30 days taking into account the seriousness of the violation and any good faith efforts to comply with applicable requirements. (c) The compilance order will advise the person to whom it is issued that: (1) Failure to comply within the specified time period will subject that person to adverse enforcement action under the Act (In addition to any such action already begun); and (2) The order may be challenged during any enforcement proceeding brought under the Act as a result of the violation specified in the order or an alleged failure to comply with the order. (d) The person to whom a compliance order is issued may seek amendment or modification of the order to conform to the facts or law as that person sees them by notifying the Administrator at the telephone number or address specified in the order. The Administrator will either amend the order or decline to amend it and will so notify the person concerned. (e) Evidence of compiance with an order issued under this section shall be presented to the Administrator in writing within the time period specified in the oreder. The Administrator will as soon as practicable determine whether or not there is timely compliance with the order, and advise the person concerned of the determination. (f) Issuing a compliance order under this section, or complying with such an order, does not preclude other enforcement proceedings under the Act or this Part if such proceedings serve the purposes of the Act, except if expressly so stated in the order, or as provided in section 111 of the Act with respect to lciense revocation. 981.830 Observers. (a) Purpose of Observers. Each licensee shall allow, at such times and to such extent as the Administrator deems reasonable and necessary an observer (as used in this section the term "observer" means "one or more observers") duly authorized by the Administrator to board, enter or accompany any OTEC facility or plantship to which a license appiles, for the purposes of observing and reporting on: (1) The effectiveness of the terms and conditions of the license: (2) Compliance with the Act. regulations and orders issued under the Act and the license terms and conditions: and (3) The environmental and other effects of the licensee's activities under the license. (b) Notice to Licensee. (1) The Administrator may notify a licensee that the Administrator plans to place an observer in or aboard the OTEC facility or plantship to which the license apllies. (2) The Administrator normally will issue any such notice as far in advance of placement of the observer as is practicable. (3) Contents of Notice. The notice given by the Administrator may include, among other things: (i) the name of the observer, if known at the time the notice is issued: (ii) the length of time which the observer likely will be in or aboard the OTEC facility or plantship: (iii) information concerning activities the observer is likely to conduct and (iv) information concerning any special requirements for the handling, storage, location, or operation of, or the power supply for, equipment to be used by the observer. (c) Licensee's Response. Upon request by the Administrator, each licensee shall promptly notify the Administrator regarding the suggested time and method for transporting the observer to the OTEC facility or plantship. 39420 Federal Register / Vol. 48, No. 147 / Friday, July 31, 1981 / Rules and Regulations (d) Duties of Licenses, Each licensee of an OTEC facility or plantship to which an observer is assigned shall assure that the observer is provided: (1) access to and use of the OTEC facility or plantship's communications equipment and personnel when the observer deems such access necessary for the transmission and receipt of messages; (2) access to and use of the OTEC facility or plantship's navigation equipment and personnel when the observer deems such access necessary to determine the facility or plantship's location: (3) All other reasonable cooperation and assistance to enable the observer to carry out the observer's duties: and (4) temporary accommodations and food to the observer in or aboard the OTEC facility or plantship which are equivalent to those provided to officers or senior operations personnel of the OTEC facility as plantship. (e) Reasonableness of Observes activities. (1) To the maximum extent practicable, observation duties will be carried out in a manner that minimizes interference with the licensee's activities under the license. (2) The Administrator will assure that equipment brought into or aboard, an OTEC facility or plantship by the observer is reasonable as to size, weight, and electric power and storage requirements, taking into consideration the necessity of the equipment for carrying out the observer's functions. (3) The observer will have no authority over the operation of the OTEC facility or plantship or its activities or the officers, crew, or personnel of the OTEC facility or plantship. The observer will comply with all orders of the master or senior operations official which are necessary to ensure the safe operation of the OTEC facility or plantship and the safety of its personnel. (f) Non-interference with Observer Licensees and other persons are reminded that the Act (see. for example. sections 301(2) and 301(3) makes it unlawful for any person subject to section 301 of the Act to interfere with any observer in the performance of the observer's duties. (g) Confidentiality of Information. NOAA recognizes the possibility that an observer, in performing observer functions, will record information which the licensee considers to be proprietary NOAA intends to protect such information consistent with applicable law. The Administrator may in appropriate cases provide the licensee an opportunity: (1) to review those parts of the observer's reports which may contain proprietary information: and (2) to request confidential treatment of such information under 981.100 of this part. 981.840 Advance notice of civil actions. (a) Actions against alleged violators. (1) No civil actions may be filed in a United States district court under section 114 of the Act against any person for alleged violation of the Act or any regulation or license term or condition issued under the Act, until 60 days after the Administrator and any alleged violator receive written and dated notice of the alleged violation. (2) The notice shall contain: (i) A concise statement of the facts believed to show a violation: (ii) A specific reference to the provisions of the Act, regulation or license allegedly violated: and (iii) Any documentary or other evidence of the alleged violation. (b) Actions against the Administrator. (1) No civil action may be filed in a United States district court under section 114 of the Act against the Administrator for an alleged failure to perform any act or duty under the Act which is not discretionary until 60 days after the Administrator receives a written and dated notice of intent to file the action. (2) The notice shall contain. (i) A specific reference to the provisions of the Act regulations or license believed to require the Administrator to perform a nondiscretionary act or duty; (ii) A precise description of the act or duty-believed to be required by such provisions (iii) A concise statement of the facts believed to show a failure to perform the act or duty; and (iv) Any documentary or other evidence of the alleged failure to perform the act or duty. Subpart G-Upper Limits on the Number or Total Capacity of OTEC Facilities and Plantships to be Licensed Under This Part(Reserved) Subpart H-OTEC Site Evaluation and Preconstruction Testing Regulations (Reserved) Subpart-Procedures for Mediation of Disputes Among Licensees Regarding Interference Between OTEC Facilities or Plantships (Reserved) FB. Doc. billing code 3510-12 U.S. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration P OSTAGE AND rEFS PAID Office of Ocean Minerals.-and Energy U.S. DEP.APRYMENT Of- COMMrAct qam 210 Washington, D.C. 20235 US-MAO' F1RST CLASS OFFICIAL BUSINESS PIE04ALTY ros, rniVATE USE. $300 00 Cn