[Federal Register Volume 70, Number 3 (Wednesday, January 5, 2005)]
[Rules and Regulations]
[Pages 693-703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-133]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 996

[Docket No: 040908256-4353-02]
RIN 0648-AS50


National Ocean Service; Quality Assurance and Certification 
Program for NOAA Hydrographic Products

AGENCY: National Ocean Service (NOS), National Oceanic and Atmospheric 
Administration (NOAA), Department of Commerce (DOC).

ACTION: Final rule.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) has 
been mandated to develop and implement a quality assurance program that 
is equally available to all applicants, under which the Administrator 
may certify hydrographic products that satisfy standards promulgated by 
the Administrator. ``Hydrographic products'' are any publicly or 
commercially available products produced by a non-Federal entity that 
include or display hydrographic data. The Administrator will fulfill 
this mandate by establishing procedures by which hydrographic products 
are proposed for certification; by which standards and compliance tests 
are developed, adopted, and applied for those products; and by which 
certification may be awarded or denied. These procedures would be the 
mandated Quality Assurance Program. The implementation of the program 
would be the execution of those procedures for specific hydrographic 
products.

DATES: Effective Date: February 4, 2005.

ADDRESSES: Comments in writing should be submitted to Director, Office 
of Coast Survey, National Ocean Service, NOAA (N/CS), 1315 East West 
Highway, Silver Spring, MD 20910. Written comments may be faxed to 
(301) 713-4019. Comments by e-mail should be submitted to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Mr. David B. Enabnit, Office of Coast 
Survey, NOAA (N/CSx2), 1315 East-West Highway, Silver Spring, MD, 
20910, (voice phone) 301-713-2770 x132, (fax phone) 301-713-4019, (e-
mail) [email protected].

SUPPLEMENTARY INFORMATION:

[[Page 694]]

Discussion of Comments Received and Changes Made

    On October 15, 2004, we published a notice of proposed rulemaking 
entitled, ``Quality Assurance and Certification Program for NOAA 
Hydrographic Products'' in the Federal Register (FR 69 FR 61172), and 
solicited comments. Eight sets of comments were received on this 
proposed rule and the policy statement that accompanied it. The 
substance of the comments and the resulting changes made to the 
regulation are summarized below. Most of the comments were made in the 
context of a single, specific hydrographic product. However, the 
Program has been established to accommodate the full range of potential 
products allowed by the law, which is extremely broad (see 
``Definitions'' under the ``Background'' section below).
    One set of comments stated that the Quality Assurance Program was 
an inappropriate activity for NOAA, and a number of reasons were 
listed. In response, NOAA cites the Hydrographic Services Improvement 
Act of 1998, as amended (codified as 33 U.S.C. 892b), which mandated 
the establishment of this program. Therefore, NOAA has no latitude in 
the matter. The comments further suggested that a substantial fee 
structure would be appropriate for the program. Again, NOAA refers to 
the enabling legislation that limits the fees NOAA may charge.
    Comments were received that, in some instances, NOAA might adopt 
existing standards or compliance tests for purposes of the Quality 
Assurance Program. ISO 19379 and the RTCM standard for Electronic Chart 
Systems were two examples cited. NOAA recognizes this opportunity, and 
specifically refers to this possibility in paragraphs 2, 5, and 6 of 
the policy statement. New sections Sec.  996.11(e) and Sec.  996.12(e) 
have been added to the regulation, and subsequent subsections 
appropriately renumbered, to insure that this option is available when 
the program is implemented.
    One set of comments stated that Sec.  996.20, ``Submission of a 
hydrographic product for certification,'' in which an applicant submits 
a hydrographic product to NOAA, was unnecessary and burdensome, and 
that applicants should submit products directly to the compliance 
testing body. Upon review, it was determined that the submission 
required by this section is only 4 items of administrative information 
and should impose little burden on an applicant. However, it serves an 
important purpose in allowing NOAA to advise applicants on the 
appropriate standard and version against which to certify; identifying 
approved compliance testing organizations that are available; and other 
matters that may aid the applicant or avoid the cost of an 
inappropriate test. This section of the regulation was left unchanged.
    One set of comments asserted that current standards for electronic 
charts, charting systems, distribution of digital chart data and 
updates, electronic charting system size and cost, and the support 
infrastructure had fatal shortcomings. These statements reflect 
obsolete information, and the writer is referred, for example, to IHO 
Technical Resolution A3.11--``ENC/SENC Distribution Option,'' and to 
IEC draft standard 62376 ``Electronic chart systems (ECS)--Operational 
and performance requirements, methods of testing, and required test 
results.'' No specific change to the NOAA Quality Assurance Program was 
proposed with these comments, and none were made.
    One set of comments offered that Sec.  996.5, ``Alterations,'' 
appeared to permit NOAA to change program regulations without following 
the Administrative Procedure Act that allows for public comment. NOAA's 
intent was to follow such procedures in executing this section, but 
since it is redundant with NOAA's existing authority under the 
Administrative Procedure Act, the section was deleted from the 
regulations to eliminate confusion.
    One set of comments thought the regulations should contain criteria 
for the acceptance of testing bodies, and pointed to the Coast Guard's 
procedures for accepting independent laboratories. Sec.  996.20(4) of 
the rule was enhanced to include characteristics of such laboratories 
that were suggested by the commenter, but the procedures used by the 
Coast Guard were thought to be excessive for the NOAA program and were 
not added to the rule.
    One set of comments objected to that portion of Sec.  996.33, 
``Acceptance of program by non-Federal entities'' which states that 
``information submitted to NOAA under this Program shall be deemed to 
be in the public domain, and no representation is made as to the 
protection of confidential, proprietary or otherwise restricted 
information.'' The comment stated that some products might be the 
result of proprietary processes that a producing company would not wish 
disclosed. After careful review of the information submission 
requirements in the regulation, it was determined that all were of an 
administrative nature necessary to run the program, and would be 
unlikely to contain any proprietary information. The one exception 
might be Sec.  996.23(3), ``Audit and decertification of hydrographic 
products.'' A new section, Sec.  996.23(c), was inserted in the 
regulation, and the subsequent subsections appropriately renumbered, to 
permit producing companies to not provide information during an audit, 
but at the risk of decertification due to a resulting lack of 
information.
    One set of comments queried whether foreign governments or foreign 
companies could participate in the Quality Assurance Program. At this 
time, NOAA believes the program would be open to foreign governments 
and foreign companies.
    Comments were received that NOAA should reconsider its policy only 
to certify hydrographic products as meeting a standard rather than 
certifying them for a particular use. NOAA's policy would mean, for 
example, that NOAA will not certify products as suitable for a specific 
purpose such as a backdrop in Automated Identification Systems, or for 
meeting chart carriage regulations. Under the program, certification 
only means that there is an adopted NOAA standard, documented 
compliance tests, and that a product had passed the tests and was 
compliant with the standard. The comments asserted that such a policy 
did not meet the requirements of the Hydrographic Services Improvement 
Act; would not support the mandatory carriage of electronic charts that 
the Coast Guard has been directed to establish; and that it violates 
the Regulatory Flexibility Act.
    The policy of certifying for ``standards-compliance'' rather than 
``use'' recognizes that in most cases, NOAA does not have the authority 
to make the determination of suitability for use. The determination of 
suitability of a backdrop for an Automated Identification System, for 
example, lies with the Coast Guard. In other cases, suitability cannot 
be determined. For example, sport fishing maps (a potential 
hydrographic product) can be certified as to their data content and 
data quality, but in no way could NOAA certify that such maps would 
improve one's catch. Finally, in the specific case of electronic 
nautical charts, the federal government already provides official 
products for this purpose, and there are valid safety reasons for 
maintaining a single, official nautical chart or publication where 
federal regulations mandate carriage. NOAA's policy was supported in 
comments from the Hydrographic Services Review Panel, a federal 
advisory committee of individuals who are especially qualified to 
advise the Administrator of NOAA on

[[Page 695]]

hydrographic program matters, and which was established by Congress. 
The panel commented that NOAA was correct in not certifying privately 
made electronic charts as meeting chart carriage regulations. They 
cited safety as the reason and urged NOAA to continue to maintain the 
single, official nautical charts where federal regulations mandate 
chart carriage.
    The comments asserting that NOAA's proposed program was not in 
compliance with the Hydrographic Services Improvement Act did not 
specify in what way the program was out of compliance. NOAA continues 
to believe that this policy is in full compliance with the Act. The Act 
only requires certification against standards promulgated by the 
Administrator, and makes no statement about certification for a 
particular use. In fact, an earlier version of the 2002 Hydrographic 
Services Improvement Act amendments legislation included such a 
mandate, but the provision was specifically removed before final 
passage. The Hydrographic Services Review Panel agreed with NOAA, 
commenting that, in its opinion, the proposed Quality Assurance Program 
satisfied the statutory requirement established by Congress.
    NOAA has provided, however, in a separate rulemaking, a process 
whereby private companies may download from the NOAA Web site and 
market exact copies of official NOAA Electronic Navigational Charts 
(ENC), may reformat and market copies of NOAA ENCs, and may package 
additional data with those ENCs and market the result. After completing 
a self-certification process to become distributors, such products 
would comply with federal chart carriage requirements. (See 
Certification Requirements for Distributors of NOAA Electronic 
Navigational Chart/NOAA Hydrographic Products, 69 FR 61165 (Oct. 15, 
2004).) This provides additional commercial opportunities for private 
companies while preserving the safety of navigation.
    As to whether NOAA's policy would deny adequate electronic chart 
coverage to support the mandatory carriage of electronic charts, which 
the Coast Guard has been directed to implement, NOAA sees no cause for 
concern, nor was that necessarily the purpose of the Act. NOAA already 
provides 100 percent coverage of its area of responsibility with 
official raster navigational charts (one type of electronic chart), 45 
percent coverage with official electronic navigational charts (a second 
type of electronic chart) with completion of the full suite scheduled 
during 2007, and the U.S. Army Corps of Engineers anticipates 
completing full coverage of primary and secondary inland river routes 
with official electronic charts during 2007, thus serving vessels that 
carry 90 percent of the inland river shipping tonnage. Also, while the 
Coast Guard must promulgate electronic chart carriage regulations by 
January 1, 2007, the effective date of those regulations; exactly which 
vessels are to be covered; and what waivers may be issued is left to 
their discretion. NOAA, the Corps of Engineers, and the Coast Guard 
will continue to coordinate closely to insure that electronic chart 
carriage is not mandated before suitable, official charts are 
available.
    One comment stated that the rule was contrary to the Regulatory 
Flexibility Act, in that, since the certified products would not be 
certified as meeting federal chart carriage regulations, a company 
supplying electronic charts would be unable to broaden their markets as 
fully as they would if chart carriage certification were part of the 
process. While NOAA appreciates that carriage-compliance certification 
could make the benefits of NOAA certification marginally greater, the 
proposed program still provides a net benefit to all companies wishing 
to participate. The program supports companies in making and selling 
electronic charts into the non-regulated market, which is 2 orders of 
magnitude larger than the regulated market. It supports the use of 
privately made electronic charts aboard regulated vessels if used as an 
aid to navigation, rather than as the means of meeting chart carriage 
regulations. It does not remove a market for privately made electronic 
charts since they never have been certified for regulatory carriage and 
do not have that market. Also, because NOAA and the Corps of Engineers 
give away, at no cost, official electronic charts for meeting carriage 
regulations, it appears that the portion of the market that the program 
does not make readily accessible to private companies would be small.

Changes From the Proposed Rule

    Although NOAA intended from the outset to allow renewal of 
certification of products under subpart C, it became clear after the 
regulations were proposed that such a renewal process was not described 
in the regulations. NOAA considers inclusion of a renewal process to be 
an essential part and logical outgrowth of the certification process 
because it allows certified companies the option of renewing their 
certification for two additional years. The option to renew 
certifications will allow companies to continue to benefit from the 
increased sales of their product resulting from ``certified'' status. 
Therefore, a renewal process is now included in Sec.  996.22(d) and 
(e).

Background

Definitions

    Hydrographic products--any publicly or commercially available 
product produced by a non-Federal entity that includes or displays 
hydrographic data.
    Hydrographic data--information acquired through hydrographic or 
bathymetric surveying, photogrammetry, geodetic, geospatial, or 
geomagnetic measurements, tide and current observations, or other 
methods, that is used in providing hydrographic services.
    Hydrographic services--hydrographic services means:

--The management, maintenance, interpretation, certification, and 
dissemination of bathymetric, hydrographic, geodetic, geospatial, 
geomagnetic, and tide and current information, including the production 
of nautical charts, nautical information databases, and other products 
derived from hydrographic data;
--The development of nautical information systems; and
--Related activities.

The Act

    The Hydrographic Services Improvement Act of 1998, as amended by 
the Hydrographic Services Improvement Act Amendments of 2002 (codified 
as 33 U.S.C. 892b), directs:
    1. IN GENERAL--The Administrator--
    A. By not later than 2 years after the date of enactment of the 
Hydrographic Services Improvement Act Amendments of 2002, shall, 
subject to the availability of appropriations, develop and implement a 
quality assurance program that is equally available to all applicants, 
under which the Administrator may certify hydrographic products that 
satisfy the standards promulgated by the Administrator under section 
303(a)(3) of the Act;
    B. May authorize the use of the emblem or any trademark of the 
Administration on a hydrographic product certified under subparagraph 
(A); and
    C. May charge a fee for such certification and use.
    Section 303(a)(3) referenced above states that the Administrator 
shall ``promulgate standards for hydrographic services provided by the 
administration.''

[[Page 696]]

Statement of Policy
    NOAA will act in accordance with the following policies in 
fulfilling its Quality Assurance Program responsibilities under the 
Hydrographic Services Improvement Act.
    1. NOAA interprets the Act as primarily intending to stimulate the 
development of hydrographic products by the private sector. The intent 
of NOAA's participation in this private sector activity is to provide 
the public a measure of confidence in the content, quality, and 
adherence to published standards of the resulting hydrographic 
products. NOAA interprets the Act in a broad sense. Therefore, 
``standards'' and ``quality assurance program'' are considered to be 
generic terms that apply to any means of satisfying the intent of the 
Act and the intent of NOAA's participation, and that are within NOAA's 
authorities.
    2. Standards, and quality assurance tests and procedures, will 
preferably be written in collaboration with those affected, not just 
written and promulgated by NOAA. In some instances, NOAA may adopt an 
existing standard or quality assurance program, rather than originate 
one. NOAA may develop standards and quality assurance tests on its own 
initiative should, for example, it be deemed beneficial for those 
standards and tests to be established before the appearance of a 
particular hydrographic product. This approach may be used to stimulate 
the production of a product that NOAA anticipates would be beneficial.
    3. The level to which standards are developed, and to which quality 
assurance is performed, may vary for different hydrographic products. 
For example, certification for manufacturers making exact copies of 
NOAA products may be implemented in a substantially differently manner 
from the certification of a complex cartographic product. NOAA 
considers all such ``standards'' and ``certifications'' as meeting the 
intent of the Act.
    4. NOAA will work, to the extent practicable, through existing, 
recognized, standards and certification bodies. This will permit the 
use of proven methods of developing, documenting, and implementing 
standards and certification. It will leverage NOAA's resources with 
those of such bodies. It will provide a more widely accepted result 
than had NOAA promulgated a standard solely under its own name.
    5. NOAA will establish the required Quality Assurance Program for 
hydrographic products. The Quality Assurance Program will be general 
procedures that apply to all hydrographic products, and specific tests 
and procedures that apply to specific hydrographic products. The 
specific quality assurance tests and procedures for a particular 
hydrographic product will be based on the standards identified by NOAA 
or written collaboratively with the affected parties.
    6. Certification of a specific hydrographic product under the 
Quality Assurance Program will be at the option of NOAA. However, 
certification will be the goal in cases where NOAA decides to write or 
adopt standards. Any non-Federal entity will be permitted to submit for 
certification hydrographic products that it asserts are compliant with 
the NOAA-adopted standards.
    7. Certification of products under the Program will mean that the 
hydrographic product has been found to be compliant with the NOAA-
adopted standards for that particular hydrographic product. 
Certification conveys no express or implied warranty as to the 
merchantability or fitness for a particular purpose; conveys no express 
or implied liability on the part of the Government of the United States 
for the hydrographic products; and conveys no automatic, direct or 
indirect NOAA endorsement of any product or service. NOAA may audit 
hydrographic products it has certified, and may decertify hydrographic 
products based on its findings.
    8. NOAA does not intend to write standards and perform quality 
assurance for every hydrographic product submitted by a non-Federal 
entity. NOAA will select those deemed appropriate for standards and 
certification by taking into account:

--The magnitude of the public benefit and enhancement of public safety 
that would be achieved compared to the commitment of resources that 
would be required;
--The breadth of support for standards and certification among all the 
affected communities;
--The practicality of writing and enforcing an effective standard and 
compliance tests;
--The availability of suitable, similar products that may already meet 
the needs of the public;
--NOAA's expertise related to that needed to write an appropriate 
standard;
--Availability of resources; and
--Other relevant criteria as they become apparent.

    In general, NOAA does not intend to write standards and certify 
products that would be used to meet the nautical chart and publications 
carriage requirements mandated in the Code of Federal Regulations and 
elsewhere. The federal government already provides official products 
for this purpose, and there are valid safety reasons for maintaining a 
single complying product for regulated carriage.
    9. Use of the NOAA emblem on certified hydrographic products will 
require separate written permission. Use of the NOAA emblem must 
satisfy an interest of the Agency, and must not result in embarrassment 
to the Agency. If the NOAA emblem is used on products that include 
other data or products, clear indication will be required as to what is 
NOAA certified. The inclusion of other data or products will not 
constitute any endorsement of, or favoritism toward, the other data or 
products by NOAA.
    10. NOAA may charge for its standards and certification activities 
such sums as may be permitted or required under this Act, or under 
other statutory authorities.
    11. NOAA will operate the Quality Assurance Program in an open and 
public manner. All standards, tests, and procedures will be publicly 
available. The public will be given ample notification of activities 
under the Quality Assurance Program, and will be given ample 
opportunity to comment and have their comments heard. This opportunity 
to participate in the Quality Assurance Program and the opportunity to 
submit hydrographic products for certification under that Program will 
be equally available to all.
    12. In all matters, NOAA will proceed in a manner that maximizes 
public safety.

Discussion of Selected Sections of the Policy

Paragraph 1

    NOAA interprets the Act as an attempt to increase the richness of 
the suite of hydrographic products available to the public, and to 
ensure the safety of those products. In addition, NOAA interprets the 
Act to include ``services'' as meeting the definition of ``hydrographic 
products,'' and may choose to write or adopt standards, quality 
assurance tests and procedures, and to certify appropriate services. 
Nautical chart updating services, or an electronic navigational chart 
distribution service, are examples of services that NOAA may consider a 
``hydrographic product'' under the Act.
    Other tools within NOAA's authority may be used to meet the 
purposes of the Act. Depending on the complexity of the hydrographic 
product, and the amount of risk the public would be exposed to,

[[Page 697]]

NOAA reserves the right to select any authorized means of establishing 
new products and providing a measure of confidence in the content, 
quality, and adherence to standards for those products. Thus, for 
purposes of accountability under the Act, NOAA is interpreting 
``standards,'' ``quality assurance,'' and ``certification'' as generic 
terms describing an outcome rather than as a specific formalism or 
document. For example, some non-Federal entities may intend to 
reproduce exactly NOAA products such as the Tide Tables. In this case, 
a ``standard'' may be a simple agreement, in which the manufacturer 
agrees to certain standards of copy quality. Further, because the 
complexity is low, self-certification might be used as the means of 
compliance testing. Other such authorities available to NOAA that may 
be used include: business licenses, Agent Agreements, no-cost 
contracts, self-certification, adoption of industry standards, and the 
use of existing certification organizations.

Paragraph 2

    Participation by the affected communities in writing standards and 
compliance tests provides an important guarantee that there is broad 
need for standards and certification, and that the resulting standard 
and certification meet the needs of the affected communities. Relevant 
communities might include: manufacturers, users, regulators, resellers, 
developers of products that use certified hydrographic products such as 
datasets, and manufacturers of competing or substitute products.
    Participation in the drafting of standards and quality assurance 
tests and procedures must be substantive and continuing by the 
designated members of the affected communities. The responsibility will 
lie with the non-Federal entity submitting a hydrographic product for 
certification to propose a broadly based group of acknowledged 
representatives of affected groups, and to secure their participation 
in the writing of standards and compliance tests.

Paragraph 6

    The Act leaves the certification of hydrographic products as 
optional for NOAA. The assumption will be, however, that if NOAA 
undertakes to write standards, it also intends to offer certification 
of the resulting hydrographic products. In general, NOAA will not 
undertake to write standards and compliance tests if it can foresee 
that certification will not be offered.
    The decision to offer certification will be made on a case-by-case 
basis. Circumstances may arise that cause standards to be written, but 
certification to not be offered. Such circumstances might include:

--A resulting standard for which NOAA lacks confidence in the safety 
implications of products that might meet that standard;
--Lack of consensus among the affected organizations writing the 
standard and compliance tests;
--Failure of adoption of the draft standards by a participating 
standards-writing body;
--Standards that negatively impact the intent of the Act, such as those 
that might exclude existing, suitable products; or standards that 
benefit a single company;
--Adopted standards that are specious; or
--Other relevant reasons as they become apparent.

Paragraph 7

    NOAA does not intend to certify products as suitable for any 
specific purpose such as for use as a backdrop in Automated 
Identification Systems. Certification only means that there is an 
adopted NOAA standard, documented compliance tests; and that the 
subject hydrographic product has been through the tests and was 
determined to be compliant with the standard.

Paragraph 8

    NOAA does not interpret the Act as merely a way to provide 
manufacturers with a marketing claim for their product, or as a means 
for one manufacturer to differentiate his product from the competition, 
although that might be a resulting effect. Neither does NOAA interpret 
the Act as intending to result in ``private standards'' that may only 
apply to one manufacturer's product.
    In addition, NOAA interprets the Act as intending to call forth new 
products, not substitutes for official ones being provided by the 
Administration. In general, NOAA does not intend to write standards and 
certify products that would be used to meet the nautical chart and 
publications carriage requirements mandated in the Code of Federal 
Regulations and elsewhere. The federal government already provides 
official products for this purpose, and there are valid safety reasons 
for maintaining a single, official nautical chart or publication where 
federal regulations mandate carriage, and for not certifying private 
products for that same purpose. These reasons include:

--Having all vessels making navigation decisions on exactly the same 
information, particularly in meeting situations or at night;
--Removing any confusion as to what products satisfy the federal 
regulations;
--Guaranteeing the timeliness and accuracy of updates to official 
charting products and their distribution;
--Removing ambiguity as to the status of non-certified data that may be 
included on or with certified private hydrographic products;
--Liability for other information when packaged with a certified 
``hydrographic product;'' and
--The impracticality of NOAA policing all substitute official 
products--products on which data changes weekly.

Exceptions to this intention might include, for example, cases where 
NOAA specifically prepares a carriage-compliant product for manufacture 
and distribution by the non-Federal entities.

Paragraph 9

    The presumption will be that use of the NOAA emblem will be 
permitted if NOAA proceeds with standards and certification. However, 
the use of the NOAA emblem will be carefully monitored. In particular, 
it will be monitored to insure that the use of the emblem is not done 
in a manner to imply the endorsement of any manufacturer; any other 
data, service, or product that may be packaged with a certified 
hydrographic product; or any particular use of a certified hydrographic 
product, and to monitor that its use not bring discredit upon the 
Agency or the Department.

Classification

A. Executive Order 12866

    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.

B. Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certifies to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule will not have a significant, 
economic impact on a substantial number of small entities. The purpose 
of this rule is to develop and implement a quality assurance program 
that is equally available to all applicants, under which the 
Administrator of NOAA may certify hydrographic products that satisfy 
standards promulgated by the Administrator. ``Hydrographic

[[Page 698]]

products'' are any publicly or commercially available product produced 
by a non-Federal entity that includes or displays hydrographic data. 
The Administrator will fulfill this mandate by establishing procedures 
by which hydrographic products are proposed for certification; by which 
standards and compliance tests are developed, adopted, and applied for 
those products; and by which certification may be awarded or denied. 
NOAA is required to develop this Quality Assurance Program under the 
authority of 33 U.S.C. 892b.
    The Small Business Administration guideline to separate small from 
large businesses is $4 million for Mapmaking firms and $5 million for 
Navigational Services to Shipping and Other Support Activities for 
Water Transportation. NOAA is unable to determine the total number of 
small entities that will be affected by this rule, as it does not 
specifically track this type of information, and because the law is 
extraordinarily broad in the range of hydrographic products that may be 
submitted for certification. However, based upon general knowledge of 
the industry, NOAA believes the majority of the entities affected may 
be small businesses.
    Public comments were received on the proposed rule with respect to 
one proposed hydrographic product--electronic nautical charts intended 
for use by certain classes of regulated vessels. NOAA's regulations are 
intended only to certify hydrographic products as meeting a standard 
rather than certifying them for a particular use. In evaluating the 
comments, NOAA concluded that in most cases NOAA does not have the 
authority to make the determination of suitability for use. The 
determination of suitability of a backdrop for an Automated 
Identification System, for example, lies with the Coast Guard. In other 
cases, suitability cannot be determined. For example, sport fishing 
maps can be certified as to their data content and data quality, but 
NOAA could not certify that such maps would improve one's catch. 
Finally, in the specific case of electronic nautical charts, the 
federal government already provides official products for this purpose, 
and there are valid safety reasons for maintaining a single, official 
nautical chart or publication where federal regulations mandate 
carriage. NOAA's policy was supported in comments from the Hydrographic 
Services Review Panel, a federal advisory committee of individuals who 
are especially qualified to advise the Administrator of NOAA on 
hydrographic program matters, and which was established by Congress. 
The panel commented that NOAA was correct in not certifying privately 
made electronic charts as meeting chart carriage regulations. They 
cited safety as the reason and urged NOAA to continue to maintain the 
single, official nautical charts where federal regulations mandate 
chart carriage.
    While NOAA appreciates that carriage-compliance certification could 
make the benefits of NOAA certification marginally greater, the 
proposed program still provides a net benefit to all companies wishing 
to participate. The program supports companies in making and selling 
electronic charts into the non-regulated market, which is 2 orders of 
magnitude larger than the regulated market. It supports the use of 
privately made electronic charts aboard regulated vessels if used as an 
aid to navigation rather than as the means of meeting chart carriage 
regulations. It does not remove a market for privately made electronic 
charts since they never have been certified for regulatory carriage and 
do not have that market. Also, because NOAA and the Corps of Engineers 
give away, at no cost, official electronic charts for meeting carriage 
regulations, it appears that the portion of the market that the program 
does not make readily accessible to private companies would be small. 
Finally, the number of companies that NOAA estimates might be affected 
by this certification for ``standards compliance'' as opposed to 
certification for ``use'' with respect to electronic nautical charts is 
between 3 and 9, not all of which may be small entities. Furthermore, 
the impact the program has on small entities will be positive. Thus the 
rule does not appear to rise to the level of causing a significant 
economic impact on a substantial number of small businesses.
    The estimated economic impact to small entities for submitting 
hydrographic products under this program is not expected to be greater 
than $600 per product submitted for labor to prepare the application. 
In addition, it is expected that there will be an average charge of 
$5,000 per product submitted for compliance testing. This proposed rule 
is voluntary. Only those applicants who wish to submit hydrographic 
products and have them certified need apply. NOAA does not believe this 
cost will hurt small companies, and the estimated costs incurred should 
be offset through the benefits in increased sales of the product 
because of its ``certified'' status or else private companies would not 
choose to submit their products to this voluntary program.

C. Paperwork Reduction Act

    This rule contains collection-of-information requirements subject 
to the Paperwork Reduction Act (PRA), which OMB has approved under 
control number 0648-0507.
    The following requirements have been submitted to OMB for approval: 
4 hours to prepare the application to have standards and compliance 
tests developed; 4 hours to prepare the application to have a specific 
hydrographic product certified; and 4 hours for an estimated, single 
request for NOAA to reconsider a decision made under the program. These 
estimates include the time for reviewing instructions, searching 
existing data sources, writing the application information and/or 
request for reconsideration, and for sending the applications to NOAA. 
Send comments regarding this burden estimate, or any other aspect of 
this data collection, including suggestions for reducing the burden, to 
NOS, (see ADDRESSES) and by e-mail to [email protected], or 
fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.
    There are no duplicative, overlapping, or conflicting Federal rules 
associated with this proposed rule.

List of Subjects in 15 CFR Part 996

    Navigation (water), Hydrographic products, Certification 
requirements.


0
For the reasons stated in the preamble, NOS amends 15 CFR chapter IX by 
adding part 996 to read as follows:
Headings

Subchapter F--Quality Assurance and Certification Requirements for NOAA 
Hydrographic Products and Services

PART 996--QUALITY ASSURANCE AND CERTIFICATION REQUIREMENTS FOR NOAA 
HYDROGRAPHIC PRODUCTS AND SERVICES

Subpart A--General
Sec.
996.1 Purpose and scope.
996.2 Definitions.
996.3 Fees.
996.4 Liability.
Subpart B--The Quality Assurance Program for Hydrographic Products
996.10 Submission and selection of hydrographic products for the 
development of standards and compliance tests.

[[Page 699]]

996.11 Development of standards for a hydrographic product or class.
996.12 Development of standards compliance tests for a hydrographic 
product or class.
996.13 Determination of whether to offer certification for a 
hydrographic product or class.
Subpart C--Certification of a Hydrographic Product and Decertification.
996.20 Submission of a hydrographic product for certification.
996.21 Performance of compliance testing.
996.22 Certification.
996.23 Audit and decertification of hydrographic products.
Subpart D--Other Quality Assurance Program Matters
996.30 Use of the NOAA emblem.
996.31 Termination of the Quality Assurance Program.
996.32 Appeals.
996.33 Acceptance of program by non-Federal entities.

    Authority: 33 U.S.C. 892b.

Subpart A--General


Sec.  996.1  Purpose and scope.

    The National Oceanic and Atmospheric Administration (NOAA) was 
mandated to develop and implement a quality assurance program that is 
equally available to all applicants, under which the Administrator may 
certify hydrographic products that satisfy standards promulgated by the 
Administrator. ``Hydrographic products'' are any publicly or 
commercially available products produced by a non-Federal entity that 
include or display hydrographic data. The procedures established here 
by which hydrographic products are proposed for certification; by which 
standards and compliance tests are developed, adopted, and applied for 
those products; and by which certification may be awarded or denied are 
the mandated Quality Assurance Program. The execution of those 
procedures for specific hydrographic products is the implementation of 
the program.


Sec.  996.2  Definitions.

    Agency means the National Oceanic and Atmospheric Administration.
    Applicant means a non-Federal entity that is submitting a 
hydrographic product to the Quality Assurance Program for 
certification.
    Certification means a determination made by NOAA that a 
hydrographic product submitted by a non-Federal entity has met the 
requirements established by NOAA for a particular hydrographic product 
or class.
    Department means the Department of Commerce.
    Hydrographic data means information acquired through hydrographic 
or bathymetric surveying, photogrammetry, geodetic, geospatial, or 
geomagnetic measurements, tide and current observations, or other 
methods, that is used in providing hydrographic services.
    Hydrographic product means any publicly or commercially available 
product produced by a non-Federal entity that includes or displays 
hydrographic data.
    Hydrographic product class means a group of hydrographic products 
with similar traits, attributes, purposes, or users.
    Hydrographic services means
    (1) The management, maintenance, interpretation, certification, and 
dissemination of bathymetric, hydrographic, geodetic, geospatial, 
geomagnetic, and tide and current information, including the production 
of nautical charts, nautical information databases, and other products 
derived from hydrographic data;
    (2) The development of nautical information systems; and
    (3) Related activities.
    Quality Assurance Program means a set of procedures by which 
hydrographic products are proposed for certification; by which 
standards and compliance tests are developed, and, if suitable, are 
adopted by NOAA for those products; and by which certification of 
individual products may be awarded or denied.
    Quality Assurance Program implementation means the execution of the 
Quality Assurance Program procedures for specific hydrographic 
products.
    Sponsor means a non-Federal entity that is submitting a 
hydrographic product to the Quality Assurance Program for the 
development of standards and compliance tests.


Sec.  996.3  Fees.

    NOAA may charge for its Quality Assurance Program activities such 
sums as may be permitted or required under this Act, or under other 
statutory authorities. Such sums are non-refundable. NOAA will attempt 
to identify any such charges upon first submission of a hydrographic 
product. However, the intent to charge and the amounts may change. NOAA 
will promptly notify the sponsor of any such changes, and will permit 
the sponsor to withdraw hydrographic products from consideration under 
the Quality Assurance Program should they so choose.


Sec.  996.4  Liability.

    The Government of the United States shall not be liable for any 
negligence by producers of hydrographic products certified under this 
part.

Subpart B--The Quality Assurance Program for Hydrographic Products


Sec.  996.10  Submission and selection of hydrographic products for the 
development of standards and compliance tests.

    (a) Any non-Federal entity may submit a hydrographic product to be 
considered for the development of standards and compliance tests under 
this Quality Assurance Program.
    (b) Submission shall be made to the Quality Assurance Program 
address below, or to such other address as may be indicated in the 
future: Director (N/CS), ATTN: Hydrographic Product Quality Assurance 
Program, Office of Coast Survey, NOAA, 1315 East West Highway, Silver 
Spring, MD 20910.
    (c) The submission shall include
    (1) Name and description of the proposed hydrographic product.
    (2) The non-Federal entity submitting the product for the 
development of standards and compliance tests, and contact information 
for that entity. This non-Federal entity shall be known as the sponsor.
    (3) The names and contact information of proposed representatives 
of the affected communities who have committed to participate 
substantively in the writing of standards and compliance tests. 
Affected communities might include: manufacturers, users, regulators, 
resellers, developers of products that use certified hydrographic 
products such as datasets, and manufacturers of competing or substitute 
products.
    (4) The names and contact information of the standards setting 
body, and the compliance testing body under whose authority it is 
proposed that the standards and compliance tests be written and 
adopted.
    (5) Information deemed relevant by the sponsor for NOAA to consider 
in deciding whether to proceed with the development of standards, 
compliance tests, and certification. Such information should address at 
a minimum:
    (i) The type and magnitude of the public benefits and enhancement 
of public safety that would be achieved;
    (ii) The breadth of support for standards and certification among 
all the affected communities;
    (iii) The practicality of writing and enforcing an effective and 
appropriate standard;

[[Page 700]]

    (iv) The availability of suitable, similar products that may 
already meet the needs of the public; and
    (v) The required expertise needed to write an appropriate standard.
    (d) NOAA may, at its option, define a hydrographic product class of 
which the proposed hydrographic product is a specific instance. 
Standards and compliance tests may then be prepared for the class 
rather than for an individual non-Federal entity's specific product.
    (e) NOAA shall publicize, in the Federal Register or by other 
appropriate means, the hydrographic product or class in order to 
solicit comments on the proposal that standards and compliance tests be 
written and certification be offered for that hydrographic product or 
class. Comments might include, but are not limited to, general 
information; statements of interest in participating in the development 
of standards and compliance tests; or objections to acceptance of the 
hydrographic product or class into this Quality Assurance Program. 
Instructions for commenting and the duration of the comment period will 
be included in the announcement.
    (f) NOAA shall decide, if its other obligations permit, within 60 
calendar days of the close of the comment period whether to proceed 
with the development of standards, compliance tests, and certification 
for the proposed hydrographic product or class. NOAA may request 
further information, and shall have additional time as required to 
consider the information once received. NOAA's decision on whether to 
proceed shall be based on the following criteria:
    (1) The magnitude of the public benefit and enhancement of public 
safety that would be achieved compared to the commitment of federal 
resources that would be required;
    (2) The breadth of support for standards and certification among 
all the affected communities;
    (3) The practicality of writing and enforcing an effective and 
appropriate standard;
    (4) The availability of suitable, similar products that may already 
meet the needs of the public;
    (5) NOAA's expertise related to the expertise needed to write an 
appropriate standard;
    (6) Availability of resources; and
    (7) Other relevant criteria as they become apparent.
    (g) NOAA's decision as to whether the proposed hydrographic product 
or class is accepted into the Quality Assurance Program shall be 
publicly announced in the Federal Register or by other appropriate 
means, and a written notification shall be provided to the sponsor. The 
response shall include NOAA's reason for its decision based on the 
criteria enumerated above.
    (h) Any party, including the sponsor, shall have an opportunity to 
request reconsideration of NOAA's decision. Said request shall be 
submitted in writing, to the Quality Assurance Program address, 
postmarked within 30 days of NOAA's announcement of its decision, and 
shall contain written material supporting the requestor's position. 
NOAA shall have, if its other obligations permit, 60 calendar days from 
the receipt of a request for reconsideration to either deny the 
request, or to reconsider and announce its decision.
    (i) NOAA's decision, either the original decision if unappealed 
within 30 days, or the decision after the request for reconsideration, 
shall be considered final.
    (j) NOAA itself may choose to identify a hydrographic product or 
class, which may or may not yet exist, but for which it intends to 
adopt standards, compliance tests, and to offer certification. In such 
cases, NOAA will be considered the sponsor. The procedures to be 
followed for NOAA-sponsored hydrographic products or classes shall be 
the same as for those sponsored by non-Federal entities, including the 
procedures for announcement, comment, and reconsideration.


Sec.  996.11  Development of standards for a hydrographic product or 
class.

    (a) NOAA shall work, to the extent practicable, through existing, 
recognized, standards bodies in the writing and adopting of standards 
for a hydrographic product or class that NOAA has accepted into this 
program. It shall be the responsibility of the sponsor to propose an 
appropriate standards writing body. NOAA may accept this body at its 
discretion, or may select an alternate body. NOAA will then undertake, 
jointly with the sponsor and acknowledged representatives of the 
affected communities, to submit the proposal for writing standards to, 
and to secure the cooperation of, the selected standards writing body.
    (b) Once accepted as a work item by the standards writing body, 
NOAA shall undertake, jointly with representatives of the affected 
community, members of the standards body, other governmental 
representatives, and the sponsor as appropriate, to write standards for 
the hydrographic product or class according to the practices of the 
standards body and the technical needs of the product. Participation in 
the writing of standards shall be determined according to the 
procedures of the standards writing body.
    (c) NOAA shall then undertake, jointly with representatives of the 
affected community, members of the standards body and the body itself, 
other governmental representatives, and the sponsor as appropriate, to 
have the resulting standard officially adopted by the standards body 
according to the procedures of that body.
    (d) NOAA may, at its option, proceed without the participation of 
an existing, recognized, standards body should it so choose. Such 
action might be taken, for example, if there were no appropriate 
standards body. In this eventuality, NOAA shall adhere to the following 
general procedure.
    (1) Announce, in the Federal Register or by other appropriate 
means, NOAA's intention to organize and chair a working group to write 
and publish standards for the proposed hydrographic product or class;
    (2) Solicit, via the Federal Register or by other appropriate 
means, participation and select, reject, and/or revoke permission to 
participate as NOAA deems appropriate so as to proceed in an orderly 
and representative manner in writing a standard;
    (3) Initiate, schedule, host, and chair, or designate a chair for, 
the work of the working group;
    (4) Circulate, via the Federal Register or by other appropriate 
means, the drafts of the working group;
    (5) Announce, via the Federal Register or by other appropriate 
means, the NOAA proposed standard and provide an opportunity for public 
comment;
    (6) Announce, via the Federal Register or by other appropriate 
means, and make available as a standard, the final version of the 
standard; and
    (7) Provide the necessary administrative support.
    (e) NOAA may, at its option, adopt an existing standard as the NOAA 
standard for this program. In this eventuality, NOAA shall adhere to 
the following general procedure.
    (1) Announce, in the Federal Register or by other appropriate 
means, NOAA's intention to adopt an existing standard for the proposed 
hydrographic product or class; and
    (2) Solicit, via the Federal Register or by other appropriate means 
including public meetings, comment on the standard that NOAA proposes 
to adopt, and shall consider the comments received.
    (f) Alternatively, NOAA may at its option, proceed by writing a 
standard by itself. Such action might be used, for example, in cases 
where the standard is

[[Page 701]]

obvious. Producing exact copies of existing NOAA products might be one 
such case. Once written, this NOAA-authored standard shall be made 
publicly available for comment, and comments shall be considered before 
NOAA publishes the final standard.
    (g) At the conclusion of the standards writing, whether through an 
existing standards body, by a NOAA-convened working group, by adopting 
an existing standard, or by NOAA itself, NOAA shall consider the 
resulting standard and comments, and either adopt or reject the 
standard as the NOAA Quality Assurance Program Standard for the 
particular hydrographic product or class. NOAA's decision shall be 
publicly announced in the Federal Register or by other appropriate 
means.
    (h) Any party may request NOAA to reconsider its decision to adopt 
or reject the standard by submitting its request in writing to the 
Quality Assurance Program address within 30 days of NOAA's announcement 
of its decision. NOAA shall have, if its other obligations permit, 60 
calendar days from the receipt of a request for reconsideration to 
either deny the request, or to reconsider and announce its decision. 
NOAA's original decision if unappealed within 30 days, or its decision 
upon reconsideration shall be considered final.


Sec.  996.12  Development of standards compliance tests for a 
hydrographic product or class.

    (a) NOAA shall work, to the extent practicable, through existing, 
recognized, compliance testing bodies in the writing and adopting of 
compliance tests for a hydrographic product or class. It shall be the 
responsibility of the sponsor to propose an appropriate compliance 
testing body. NOAA may accept this body at its discretion, or may 
select an alternate body. NOAA will then undertake, jointly with the 
sponsor and acknowledged representatives of the affected communities, 
to secure the cooperation of the selected compliance testing body.
    (b) NOAA shall undertake, jointly with representatives of the 
affected community, members of the compliance testing body, other 
governmental representatives, and the sponsor as appropriate, to write 
compliance tests for the hydrographic product or class according to the 
practices of the compliance testing body and the Quality Assurance 
Program standard adopted by NOAA. Participation in the writing of 
compliance tests may be determined according to the procedures of the 
compliance testing body.
    (c) NOAA shall then undertake, jointly with representatives of the 
affected community, members of the compliance testing body and the body 
itself, other governmental representatives, and the sponsor as 
appropriate, to have the resulting compliance tests adopted according 
to the procedures of that body.
    (d) NOAA may, at its option, proceed without the participation of 
an existing, recognized, compliance testing body should it so choose. 
Such action might be taken, for example, if there were no appropriate 
compliance testing body. In this eventuality, NOAA will adhere to the 
following general procedure:
    (1) Announce, in the Federal Register or by other appropriate 
means, NOAA's intention to organize and chair a working group to write 
and publish compliance tests for the hydrographic product or class;
    (2) Solicit, via the Federal Register or by other appropriate 
means, participation and select, reject, and/or revoke permission to 
participate as NOAA deems appropriate so as to proceed in an orderly 
and representative manner in writing compliance tests;
    (3) Initiate, schedule, host, and chair, or designate a chair for, 
the work of the working group;
    (4) Circulate, via the Federal Register, or by other appropriate 
means, the drafts of the working group;
    (5) Announce, via the Federal Register or by other appropriate 
means, a NOAA proposed final version of the compliance tests and 
provide an opportunity for public comment;
    (6) Announce, via the Federal Register or by other appropriate 
means, and make available the final version of the compliance tests, 
and
    (7) Provide the necessary administrative support.
    (e) NOAA may, at its option, adopt existing compliance tests as the 
NOAA compliance tests for this program. In this eventuality, NOAA shall 
adhere to the following general procedure:
    (1) Announce, in the Federal Register or by other appropriate 
means, NOAA's intention to adopt existing compliance tests for the 
proposed hydrographic product or class; and
    (2) Solicit, via the Federal Register or by other appropriate means 
including public meetings, comment on the proposed compliance tests 
that NOAA proposes to adopt, and shall consider the comments received.
    (f) Alternatively, NOAA may, at its option, proceed by writing 
compliance tests by itself. Such action might be used, for example, in 
cases where the tests are obvious. Producing exact copies of existing 
NOAA products might be one such case. Once written, these NOAA-authored 
tests shall be made publicly available for comment, and comments shall 
be considered before NOAA publishes the final compliance tests.
    (g) At the conclusion of the compliance test writing, whether 
through an existing body, by a NOAA-convened working group, by adopting 
existing compliance tests, or by NOAA itself, NOAA shall consider the 
resulting compliance tests and comments, and either adopt or reject 
them as the NOAA Quality Assurance Program compliance tests for the 
particular hydrographic product standard. NOAA's decision shall be 
publicly announced in the Federal Register or by other appropriate 
means.
    (h) Any party may request NOAA to reconsider its decision to adopt 
or reject the compliance tests by submitting its request in writing to 
the Quality Assurance Program address within 30 days of NOAA's 
announcement of its decision. NOAA shall have, if its other obligations 
permit, 60 calendar days after the receipt of a request for 
reconsideration to either deny the request, or to reconsider and 
announce its decision. NOAA's original decision if unappealed within 30 
days, or its decision upon reconsideration shall be considered final.


Sec.  996.13  Determination of whether to offer certification for a 
hydrographic product or class.

    (a) Certification of a hydrographic product or class shall be at 
the option of NOAA. NOAA may decide at any time whether or not to offer 
certification for a product or class. However, it is most likely that a 
determination will be made only after a non-Federal entity has 
submitted a specific product for certification. NOAA's decision shall 
be based on the following criteria:
    (1) The suitability of the adopted standards and tests for their 
intended purpose;
    (2) The availability of a qualified entity to perform the 
compliance tests;
    (3) Availability of resources; and
    (4) Other relevant criteria as they become apparent.
    (b) NOAA's decision as to whether certification for a hydrographic 
product or class is offered shall be publicly announced in the Federal 
Register or by other appropriate means.
    (c) Any entity may request NOAA to reconsider its decision to offer 
or not offer certification by submitting its request in writing to the 
Quality Assurance Program address within 30 days of NOAA's announcement 
of its decision. NOAA shall have, if its other

[[Page 702]]

obligations permit, 60 calendar days after the receipt of a request for 
reconsideration to either deny the request, or to reconsider and 
announce its decision.
    (d) NOAA's original decision if unappealed within 30 days, or its 
decision upon reconsideration, shall be considered final.

Subpart C--Certification of a Hydrographic Product and 
Decertification.


Sec.  996.20  Submission of a hydrographic product for certification.

    (a) Upon adoption by NOAA of standards and compliance tests, any 
non-Federal entity may submit a hydrographic product for certification 
under a particular standard. This non-Federal entity shall be known as 
the applicant. Submission shall be made in writing to the Quality 
Assurance Program address. The submission shall include:
    (1) Name and description of the hydrographic product and its 
product class if any;
    (2) Identification and contact information for the non-Federal 
entity submitting the product for certification.
    (3) The identification of the standard and compliance tests adopted 
by this Quality Assurance Program under which the hydrographic product 
is to be certified;
    (4) A proposed, qualified, competent, independent compliance 
testing body to perform the compliance tests, which NOAA may accept at 
its discretion, or for which NOAA may select an alternative testing 
body;
    (5) Other information deemed relevant by the sponsor or requested 
by NOAA.
    (b) [Reserved]


Sec.  996.21  Performance of compliance testing.

    (a) NOAA and the applicant shall submit the applicant's 
hydrographic product to the testing body for performance of the 
compliance tests. That body shall determine compliance or non-
compliance of the hydrographic product with the NOAA-adopted standard, 
and shall provide to NOAA written documentation stating the results of 
the compliance tests according to its usual practices.
    (b) Alternatively, NOAA may choose, at its option, to perform, have 
performed by a NOAA-designated entity, or waive the compliance tests 
for a hydrographic product. This alternative may be used, for example, 
when there is no qualified entity to perform the compliance tests, 
where the compliance tests are simple, or when self-certification of 
compliance would be appropriate.
    (c) Items failing the compliance tests may be changed by the 
applicant and retested. Items passing the compliance test upon retest 
shall be deemed compliant as if they had passed said tests initially.


Sec.  996.22  Certification.

    (a) A hydrographic product that has passed the compliance tests 
shall automatically be considered for certification by NOAA. NOAA shall 
make its certification determination, if its other obligations permit, 
within 60 calendar days following receipt of the compliance test 
results. NOAA shall make a certification determination based upon the 
following criteria:
    (1) The results of the compliance tests;
    (2) The potential for the hydrographic product to impair public 
safety;
    (3) Successful completion of any administrative requirements, 
including the payment of required fees, as may be specified by NOAA;
    (4) The potential for certification to cause embarrassment to the 
Agency or the Department;
    (5) Other relevant criteria as they become apparent.
    (b) Hydrographic products receiving a certification determination 
in the affirmative shall be designated as ``certified'' by NOAA. NOAA 
shall provide a written document to the sponsor indicating such, and 
shall announce its determination in the Federal Register or by other 
appropriate means. Certification shall mean that the hydrographic 
product has been found to be in compliance with the NOAA-adopted 
standard for that hydrographic product or class. Certification conveys 
no express or implied warranty as to the merchantability or fitness for 
a particular purpose; conveys no express or implied liability on the 
part of the Government of the United States for the hydrographic 
products; and conveys no automatic, direct or indirect NOAA endorsement 
of any product or service.
    (c) Certification shall be for a term of 3 years unless otherwise 
specified by the Administrator.
    (d) A certification may be renewed, at the request of sponsor and 
the option of NOAA, for a period of 2 years. Sponsors may request the 
renewal of a certification by writing to the Quality Assurance Program 
address at least 120 calendar days before the expiration of an existing 
certification. The request shall include:
    (1) Identifying and contact information for the sponsor;
    (2) Identifying information for the relevant hydrographic 
product(s) and the standard(s) under which they were certified;
    (3) Evidence sufficient to assure NOAA that the hydrographic 
product still meets the standard under which it was certified; and
    (4) Other information as may be requested by NOAA.
    (e) NOAA shall decide within 60 calendar days, if its other 
obligations permit, whether to renew a certification. NOAA's decision 
shall be based on whether the hydrographic product continues to meet 
the applicable standard, and other relevant criteria as they become 
apparent.
    (f) The sponsor shall have an opportunity to request 
reconsideration of NOAA's decision. Said request shall be submitted in 
writing, to the Quality Assurance Program address, postmarked within 30 
days of NOAA's announcement of its decision, and shall contain written 
material supporting the requestor's position. NOAA shall have, if its 
other obligations permit, 30 calendar days from the receipt of a 
request for reconsideration to either deny the request, or to 
reconsider and announce its decision.
    (g) NOAA's decision, either the original decision if unappealed 
within 30 days, or the decision after the request for reconsideration, 
shall be considered final.


Sec.  996.23  Audit and decertification of hydrographic products.

    (a) NOAA may audit hydrographic products it has certified. NOAA may 
conduct audits without advance notification. However, visits to 
companies' facilities will be scheduled. Audits may include, but are 
not limited to:
    (1) The producing companies as it may affect the certified product;
    (2) Certified products;
    (3) Processes used in making, distributing, and marketing certified 
products;
    (4) Use of the NOAA emblem;
    (5) Examination of manufacturers' public claims about certified 
hydrographic products;
    (6) Other relevant criteria as they become apparent.
    (b) NOAA may decertify a hydrographic product based on the findings 
of an audit. In general, a hydrographic product may be decertified if:
    (1) The results of an audit indicate that the product no longer 
meets the standards under which it was certified;
    (2) The product has been substantively changed from the product 
that was tested and certified;

[[Page 703]]

    (3) Implied or actual claims about the product, and/or other data 
or products linked to the product, are judged by NOAA to be untrue or 
misleading;
    (4) The NOAA emblem was improperly or inappropriately displayed;
    (5) Other relevant reasons as they become apparent.
    (c) A producing company may decline to reveal information during an 
audit that it declares to be proprietary or for other reasons. In this 
eventuality, NOAA reserves the right to decertify based on lack of 
information should it deem that action appropriate.
    (d) The entity producing the certified hydrographic product shall 
be notified in writing of NOAA's intent to decertify that product. Said 
entity shall have 30 days to request reconsideration of that intended 
action in writing to the Quality Assurance Program address. Said 
request shall contain the identification of the hydrographic product, 
the requestor, and sufficient information for NOAA to make a 
determination on the request for reconsideration. Alternatively, the 
entity may correct the deficiencies cited by NOAA within 30 days, 
notify NOAA in writing at the Quality Assurance Program address of the 
corrective action taken, and provide sufficient evidence for NOAA to 
judge the correctness and effectiveness of the corrective action taken.
    (e) If a request for reconsideration is submitted, or if the 
producing entity asserts that the deficiencies have been corrected, 
NOAA shall have 60 calendar days, if its other obligations permit, to 
consider the request for reconsideration or the corrective action, at 
which time NOAA shall issue its decertification decision. The decision 
and NOAA's reason for its action shall be made public in the Federal 
Register or by other appropriate means, and the producing entity shall 
be notified in writing.
    (f) NOAA's decertification, if unappealed or uncorrected within 30 
days, shall be considered final. NOAA shall notify the producing entity 
of this action in writing, and announce the decertification in the 
Federal Register or by other appropriate means.
    (g) Upon decertification, manufacturers shall discontinue all 
claims of certification, and shall discontinue use of the NOAA emblem.

Subpart D--Other Quality Assurance Program Matters


Sec.  996.30  Use of the NOAA emblem.

    (a) Use of the NOAA emblem on certified hydrographic products 
requires separate written permission. Use of the NOAA emblem must 
satisfy an interest of the Agency, and must not result in embarrassment 
to the Agency or the Department. If the NOAA emblem is used on products 
that include other data or products, clear indication shall be made as 
to what is NOAA certified, and what is not NOAA certified. The 
inclusion of other data or products will not constitute any endorsement 
of, or favoritism toward, the other data or products by NOAA. Requests 
for use of the NOAA emblem shall be submitted in writing to the Quality 
Assurance Program address, and shall include:
    (1) Name and description of the hydrographic product(s) on which 
the emblem will be displayed.
    (2) Name and contact information for the entity requesting use of 
the NOAA emblem.
    (3) Exact samples of all uses intended for the NOAA emblem 
including text claims with, within, or associated with the hydrographic 
product, its packaging, and advertising that a reasonable person might 
associate with the NOAA emblem.
    (4) Proof of NOAA certification.
    (5) Other relevant information as may later be specified.
    (b) [Reserved]


Sec.  996.31  Termination of the Quality Assurance Program.

    (a) NOAA reserves the right to terminate the Quality Assurance 
Program for a particular hydrographic product or class at any time 
before certification is awarded if it is deemed to be in the public 
interest to do so. NOAA shall give written notification to the sponsor 
and other interested parties should it decide to exercise this option, 
and shall state the reasons for its action. Reasons for termination may 
include, but are not limited to:
    (1) The inability of the standards-drafting group to reach a 
consensus on the content of the standard;
    (2) Valid objections to the existence of NOAA-certification of a 
particular hydrographic product or class;
    (3) A negative impact on public safety should the hydrographic 
product receive certification;
    (4) Other relevant reasons as they become apparent.
    (b) The sponsor or other interested parties shall have 30 days to 
request a reconsideration of the termination action. Said request shall 
be in writing to the Quality Assurance Program address, and shall 
include written material supporting the appeal. NOAA shall have, if its 
other obligations permit, 60 calendar days from the receipt of a 
request for reconsideration to either deny the request, or to 
reconsider and announce its decision.
    (c) NOAA's decision, either the original decision if unappealed 
within 30 days, or the decision after the request for reconsideration, 
shall be considered final.


Sec.  996.32  Appeals.

    (a) Any entity may appeal a final decision made by the Agency under 
this Quality Assurance Program. Said appeal shall be submitted in 
writing to the Quality Assurance Program address, and shall contain at 
least:
    (1) Identification and contact information of the appealing entity;
    (2) A statement that this is an appeal to a final decision of the 
Quality Assurance Program;
    (3) A description of what decision is being appealed;
    (4) A thorough but concise argument as to why the requestor 
believes the Quality Assurance Program decision being appealed should 
be set aside.
    (5) Other information as may later be determined to be relevant.
    (b) Appeals shall be arbitrated by the Assistant Administrator for 
Ocean Services and Coastal Zone Management, NOAA, using procedures to 
be established at the time of the appeal, and which shall be 
appropriate to the nature and circumstances of the appeal. The 
determination from this arbitration shall be final for purposes of 
judicial review under the Administrative Procedure Act and other 
statutes.


Sec.  996.33  Acceptance of program by non-Federal entities.

    By their voluntary entrance or participation in this Quality 
Assurance Program or its activities, all parties acknowledge and accept 
the procedures established by this program, including the finality of 
decisions. All parties acknowledge and accept that information 
submitted to NOAA under this Program shall be deemed to be in the 
public domain, and no representation is made as to the protection of 
confidential, proprietary or otherwise restricted information.

    Dated: December 27, 2004.
Alan Neuschatz,
Associate Assistant Administrator for Management, Ocean Services and 
Coastal Zone Management, National Oceanic and Atmospheric 
Administration.
[FR Doc. 05-133 Filed 1-4-05; 8:45 am]
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