[Federal Register Volume 79, Number 108 (Thursday, June 5, 2014)]
[Rules and Regulations]
[Pages 32449-32464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-13034]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 997

[Docket No. 120813326-4163-02]
RIN 0648-BC18


U.S. Integrated Ocean Observing System; Regulations To Certify 
and Integrate Regional Information Coordination Entities

AGENCY: U.S. Integrated Ocean Observing System Program Office (IOOS), 
National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: The U.S. Integrated Ocean Observing System Program Office, led 
by the National Oceanic and Atmospheric Administration (NOAA), issues 
this final rule to implement provisions of the Integrated Coastal and 
Ocean Observation System Act of 2009 (ICOOS Act). Among other things, 
the ICOOS Act directs the Interagency Ocean Observation Committee 
(IOOC) to develop and approve certification criteria and procedures for 
integrating regional information coordination entities (RICEs) into the 
National Integrated Coastal and Ocean Observation System (System). This 
rule accomplishes that goal. This rule also implements the provisions 
of the ICOOS Act establishing that certified entities integrated into 
the System are, for the purposes of determining liability arising from 
the dissemination and use of observation data, considered part of NOAA 
and therefore their employees engaged in the collection, management, 
and dissemination, of observation data in the System receive the same 
tort protections for use of that data as Federal employees.

DATES:  Effective date: July 7, 2014.

ADDRESSES: Copies of the final rule are available upon request to U.S. 
Integrated Ocean Observing System Program Office, 1100 Wayne Ave., 
Suite 1225, Silver Spring, MD 20910. The final rule can also be viewed 
on the Web and downloaded at http://www.ioos.noaa.gov/certification/.

FOR FURTHER INFORMATION CONTACT: Dave Easter, U.S. Integrated Ocean 
Observing System Program Office, at (301) 427-2451.

SUPPLEMENTARY INFORMATION: 

Background

    The Integrated Coastal and Ocean Observation System Act of 2009 
(Pub. L. 111-11) (ICOOS Act or Act) (codified at 33 U.S.C. 3601-3610) 
directs the President, acting through the National Ocean Research 
Leadership Council (Council), to establish a National Integrated 
Coastal and Ocean Observation System (System). The System must 
``include[] in situ, remote, and other coastal and ocean observation, 
technologies, and data management and communication systems, and [be] 
designed to address regional and national needs for ocean information, 
to gather specific data on key coastal, ocean, and Great Lakes 
variables, and to ensure timely and sustained dissemination and 
availability of these data.'' 33 U.S.C. 3601(1). Another purpose of the 
System is ``to fulfill the Nation's international obligations to

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contribute to the Global Earth Observation System of Systems and the 
Global Ocean Observing System.'' 33 U.S.C. 3601(1) and 3603(a).
    The System is built upon a national-regional partnership, with 
contributions from both Federal and non-Federal organizations, 
promoting the quick and organized collection and distribution of ocean, 
coastal, and Great Lakes data and data products to meet critical 
societal needs. System data is used by both governmental and non-
governmental concerns, to, among other things, ``support national 
defense, marine commerce, navigation safety, weather, climate, and 
marine forecasting, energy siting and production, economic development, 
ecosystem-based marine, coastal, and Great Lakes resource management, 
public safety, and public outreach training and education.'' It is also 
used to promote public awareness and stewardship of the Nation's 
waterways, coasts and ocean resources, and to advance scientific 
understanding of the use, conservation, management, and understanding 
of healthy ocean, coastal, and Great Lake resources. 33 U.S.C. 
3601(1)(A)-(C).
    The ICOOS Act directs the Council to establish or designate an 
Interagency Ocean Observation Committee (IOOC). In 2010, the Joint 
Subcommittee on Ocean Science and Technology (JSOST), acting on behalf 
of the Council, established the IOOC. The IOOC replaced, and assumed 
and expanded the role of its predecessor, the Interagency Working Group 
on Ocean Observations, which was originally established by the JSOST 
under the Ocean Action Plan.
    Under the ICOOS Act, the IOOC must ``develop contract certification 
standards and compliance procedures for all non-Federal assets, 
including regional information coordination entities, to establish 
eligibility for integration into the System.'' 33 U.S.C. 3603(c)(2)(E). 
To create the certification criteria, the IOOC chartered two working 
groups consisting of subject matter experts on IOOS data partners and 
regional entities to draft recommended certification criteria. The 
recommended draft criteria were approved by the IOOC in October 2011 
and released for public input. After a sixty-day public comment period 
and adjudication of public input, the IOOC drafted final certification 
criteria.
    In developing certification criteria, the IOOC focused on 
identifying the governance and management criteria a RICE--
organizations that coordinate regional observing efforts; manage and 
operate observing assets; manage and distribute data; and engage user 
groups in product development--must have in place to allow NOAA to 
coordinate non[hyphen]federal assets for the purposes of the ICOOS Act. 
The IOOC certification standards ensure the necessary policies, 
standards, data, information, and services associated with eligibility 
for integration into the System are appropriately established, 
coordinated, overseen and enforced.
    This rule establishes the criteria and procedures for how RICEs can 
apply and become certified for and integrated into System. Integration 
into the System formally establishes the role of the RICE and ensures 
that the data collected and distributed by the RICE are managed 
according to the best practices, as identified by NOAA.
    Additionally, under the ICOOS Act, employees of RICEs that NOAA has 
certified and incorporated into the System who gather and disseminate 
information under this Act are, for the purposes of determining 
liability arising from the dissemination and use of observation data, 
considered to be part of NOAA. In other words, they are federal 
employees for the purposes of tort liability relating to their work 
directly related to the System. Only those non-federal entities that 
agree to meet the standards established under the process described in 
the ICOOS Act, and that are designated by NOAA as certified entities in 
the System, will be considered as ``certified'' for purposes of these 
regulations.
    This rule satisfies the ICOOS Act requirement that NOAA, as the 
lead Federal agency for implementing the System, ``promulgate program 
guidelines to certify and integrate non-federal assets, including 
regional information coordination entities, into the System.'' 33 
U.S.C. 3603(c)(3)(C). Accordingly, it details the compliance procedures 
and requirements for certifying RICEs that satisfy the IOOC-approved 
certification standards.
    Among other things, to become certified, RICEs must provide NOAA 
with information about their organizational structure and operations, 
including capacity to gather required System observation data. They 
must also document their ability to accept and disburse funds and to 
enter into legal agreements with other entities. RICEs must have by-
laws, accountability measures governing boards and an explanation of 
how they are selected, and be able to provide information about RICE 
diversity, user feedback processes, and transparency. Moreover, RICEs 
must submit to NOAA a strategic operation plan to ensure the efficient 
and effective administration and operation of programs and assets to 
support the System, and agree to and actually work cooperatively with 
other governmental and non-governmental entities to the benefit of the 
System. Importantly, an application for certification must include a 
description of the RICE's management of ongoing regional system 
operations and maintenance. The RICE must illustrate its standard 
operating procedures for ensuring the continued validity and 
maintenance of equipment used; strategies to enhance the System. 
Additionally, a RICE must also provide a Data Management and 
Communications Plan documenting how the RICE maintains and controls 
data quality and distribution. Certification lasts for five years, 
after which time a certified RICE must apply for re-certification.
    These regulations apply to the certification of RICEs only. Further 
regulations will be developed by NOAA to provide certification for 
other non-federal assets that do not meet the definition of RICEs.

Differences Between the Proposed Rule and the Final Rule

    The Administrative Procedure Act (APA) notice-and-comment process 
(5 U.S.C. 553) contemplates that changes may be made to the proposed 
rule without triggering an additional round of public notice and 
comment so long as the changes are ``in character with the original 
scheme'' and are of a type that could have been reasonably anticipated 
by the public (i.e., a logical outgrowth of the proposal or comments 
received) (Foss v. National Marine Fisheries Service, 161 F.3d 584, 591 
(9th Cir. 1998); Chemical Mfrs Ass'n v. United States Environmental 
Protection Agency, 870 F.2d 177 (5th Cir. 1989). The differences from 
the proposed rule text, published in July 2013 (78 FR 39638) and this 
final rule, including the basis for changes, are summarized as follows:
    A. NOAA added a definition of ``Equipment'' to Sec.  997.1 to 
clarify the extent of requirement Sec.  997.23 (d)(4)(i). The new 
language defines equipment ``as a tangible asset that is functionally 
complete for its intended purpose and has a capital cost of over $5000. 
Both individual sensors and collections of sensors on a platform are 
considered equipment and are subject to the $5000 minimum cost.''
    B. NOAA revised Sec.  997.13(c) to now require a RICE to notify 
NOAA only when substantive changes are made to its organizational 
structure or Strategic Operational Plan, rather than when any changes 
are made to the details of the structure or Plan as published in the

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proposed rule. There were a number of comments submitted that stated 
the proposed language would be onerous for a RICE. NOAA's intention 
with this requirement is to be notified and approve significant changes 
to the RICE's management and operational practices, not to be involved 
in the day to day operations of the RICE.
    C. NOAA revised Sec.  997.15(a) to remove the language allowing 
NOAA to conduct an audit without notice, and to now indicate that NOAA 
will work with the RICE on the timing and process for the audit. The 
intention of the audit is not punitive, but more evaluative and is 
consistent with language in the ICOOS Act requiring that NOAA, as the 
lead federal agency for the System, shall develop and implement a 
process for the periodic review and evaluation of the RICEs (Sect. 
12304(c)(3)(H)). NOAA's desire is to work with the RICE to review and 
evaluate the RICE's procedures with a goal to improve effectiveness and 
maintain credibility.
    D. NOAA revised Sec.  997.15(c) to extend the time available to 
request in writing that NOAA reconsider its intent to decertify the 
RICE or notify NOAA in writing of the corrective action(s) taken, from 
30 days to 45 days.
    E. NOAA added language to Sec.  997.21(b)(3) to clarify that if a 
RICE has a conflict of interest policy that requires a Board member 
recuse themselves from funding decisions only when the decision may 
result in the Board member or a direct family member would benefit 
financially. NOAA recognizes that the ocean and coastal observing 
community is small and the proposed language would unnecessarily 
restrict Board member participation in decision-making if interpreted 
broadly.
    F. NOAA revised Sec.  997.23(d)(1) and (2) to delete the references 
to products and services that the system will deliver. NOAA received 
several comments stating that the focus of the Strategic Operational 
Plan should be on the process and desired outcomes, not the assets, 
products, and deliverables. NOAA agrees that the describing the RICE's 
processes to deliver quality data and desired outcomes is more valuable 
than specific products and services, that may change over the five year 
duration of certification.
    G. NOAA revised Sec.  997.23(d)(4)(i-ii) to clarify its requirement 
for the calibrating validating, operating, and maintaining equipment 
owned and/or operated by the RICE, and for maintaining equipment 
inventories, shipping logs and instrument history logs for equipment 
owned and/or operated by the RICE. NOAA agrees with the comments on the 
subjective nature of the word ``ensure'' and has deleted this language. 
NOAA has also defined equipment in Sec.  997.1, clarifying the extent 
of the requirement. NOAA's intent is that for assets owned and/or 
operated by the RICE, the RICE should describe a standard operating 
procedure for equipment maintenance according to best practices. NOAA's 
intent is not to dictate the required actions of the RICE, only that 
the RICE must have a standard operating procedure in place. For assets 
financially supported by the RICE, fully or partially, but operated by 
a subcontractor, the RICE should instruct subcontractors to follow best 
practices and should mandate that equipment maintenance reports should 
be available periodically or by request.
    H. NOAA revised Sec.  997.23(f)(3) to add language clarifying that 
a RICE is not responsible for performing or describing the quality 
control procedures for data the RICE obtains from a federal data 
source. NOAA received several comments stating that it would be 
unreasonable to require RICEs to perform additional quality control 
procedures on data federal agencies have deemed suitable for public 
use. While NOAA's intention is that all the data made available by the 
RICE is quality controlled, it does not see the necessity of applying 
additional quality control procedures to data these agencies have 
distributed for use. NOAA added language to clarify that the RICE must 
use QARTOD quality control procedures for those data with approved 
QARTOD manuals. This requirement is consistent with the ICOOS Act 
requirement that NOAA shall implement protocols and standards approved 
by the IOOC. Lastly, NOAA deleted the examples of different procedures 
that may be used in the quality control. For variables without 
documented QARTOD procedures, the quality control procedures are 
subject to the judgment of the RICE until QARTOD standards become 
available.
    I. NOAA deleted the requirement that a RICE outline their plan and 
strategies for diversifying their funding sources and opportunities 
(proposed as Sec.  997.23(g)(2). NOAA received numerous comments that 
this requirement was not relevant to integrating a RICE into the 
System. Although NOAA encourages certified RICEs to pursue diversified 
funding sources and opportunities, it agrees that this requirement was 
not relevant to being integrated into the System and NOAA's intent is 
that the certification is not connected to any specific funding 
opportunities or existing awards.
    J. NOAA revised Sec.  997.23(d)(3) and Sec.  997.23(f)(1)(i) to 
allow a RICE to identify more than a single individual for each of the 
positions described in these sub-sections. NOAA received several 
comments that not all RICEs have a single individual responsible for 
observations system management across the region and/or data management 
across the region. Although NOAA has eliminated the limit on the number 
of individuals a RICE may identified for each of these positions, these 
individuals must still satisfy the requirements listed in Sec.  
997.26(c) to be considered employees of a RICE as defined in the rule.
    K. NOAA revised Sec.  997.25(c) to clarify that a RICE only needs 
to submit to NOAA the documentation on its annual operating and 
maintenance costs upon request. NOAA recognizes the additional 
reporting burden that an annual reporting requirement would impose and 
has modified its approach, while still maintaining NOAA's ability for 
fiscal oversight as required in the Act.

Responses to Public Comments

    NOAA published the Notice of Proposed Rulemaking on July 2, 2013 
soliciting public comments until August 1, 2013. All written and verbal 
comments received during the public comment period were compiled and 
grouped into eight categories. Similar comments from multiple 
submissions have been treated as one comment for purposes of response. 
NOAA considered all comments and, where appropriate, made changes that 
are reflected in this final rule. Several commenters expressed concern 
about the rule under the Regulatory Flexibility Act and those comments 
are addressed further in the ``Classification'' section below. 
Substantive comments received are summarized below, followed by NOAA's 
response.

Organizational Structure

    Comment 1: Many Governing Board members have direct interest in the 
operations of the RA. If the rule is interpreted so that Board members 
whose institutions receive any funding from the RA would have to recuse 
themselves on any funding decisions, then it would be impossible to 
achieve a quorum. Perhaps the conflict of interest could be defined as 
applying to a council member receiving funds that benefit their own 
financial situation or that of their family members.
    Response 1: NOAA agrees that the definition of the term ``conflict 
of interest'' may have the potential to create unintended consequences, 
and

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has revised the term at Sec.  997.21(b)(3) to indicate that a conflict 
of interest occurs when actions benefit a Board member's financial 
situation or that of their family members.
    Comment 2: We request more clarity on definition of ``solicits and 
receives advice on participant diversity, etc.'' The requirements 
stated here seem redundant with requirements which follow in 
(b)(5)(iii) with the exception of the term ``advice.'' This paragraph 
also lacks supporting guidance about what would be considered 
sufficient documentation to demonstrate compliance.
    Response 2: The objective of the requirement to solicit and receive 
advice on participant diversity is to show that the organization is 
actively soliciting feedback on their priorities and organizational 
structure. This requirement is different from the requirements in Sec.  
997.21(b)(5)(iii),in that the requirement in Sec.  997.21(b)(3) seeks 
information on how the RICE solicits their partners for feedback on the 
RICE organizational structure, whereas the requirement in Sec.  
997.21(b)(5)(iii) asks for feedback to gauge the effectiveness of the 
organization.
    When possible, NOAA has provided supporting guidance about what it 
considers sufficient documentation for approval within this rule, 
particularly when it considers doing so critical to defining the 
requirement. In addition, NOAA will publish guidance on complying with 
the requirements when the Final Rule is published. For this particular 
requirement, there is no ``standard'' for approval other than 
describing how and with what frequency the RICE solicits and receives 
advice.
    Comment 3: Establishing a membership policy that ``strives for 
diversity'' is something that is difficult to demonstrate aside from a 
statement to the effect. This is an example of a requirement that 
appears to be outside the scope of necessary elements for 
certification. If that is not the case, the proposed rule must be 
modified to define ``diversity'' clearly and provide more information 
about the minimum necessary requirements.
    Response 3: The rule identifies ``strives for organizational 
diversity'' as including intra-regional representation and addresses 
interests from both the public and private sectors. The objective of 
this requirement is to ensure that a RICE avoids the establishment of a 
limited and restricted organization that addresses a narrow set of user 
needs. This is consistent with the ICOOS Act language that states a 
RICE shall work cooperatively with a variety of entities and consider 
the needs of multiple users within the region. Because this is clear in 
this final rule, no additional language is needed.

Strategic Operational Plan

    Comment 4: The requirements for the SOP could be streamlined as 
some pieces of information are requested multiple times. Both the 
Development Strategy and the Budget Plan ask for information regarding 
how the RAs make decisions to support the system and for guiding 
funding decisions. Recommendation: Combine the elements for the 
Development Strategy and the Budget Plan together to make a more 
streamlined and coherent document.
    Response 4: While Sec.  997.23(e)(1) and Sec.  997.23(g)(3) are 
logically related, each guideline asks for different levels of detail. 
Sec.  997.23(e)(1) asks for the RICE to describe an approach for 
prioritizing new and possibly competing priorities. Sec.  997.23(g)(3) 
asks the RICE for a budget plan which explains/defends the RICE's 
decisions for funding based on RICE priorities. For this reason, NOAA 
makes no changes to the proposed language.
    Comment 5: As written, there are many requirements that are 
excessive or in need of clarification to demonstrate they are not 
excessive in application to RICEs that have a mix of assets supported 
financially by different sources. The elements required for 
certification must only be those necessary to achieve the stated 
purpose of the proposed rule: To integrate RICEs into the National 
Integrated Coastal and Ocean Observation System.
    Response 5: NOAA maintains that the rule represents the minimum 
requirements for certification and integration into the System, based 
on the ICOOS Act language and the approved IOOC certification criteria. 
As part of the rule development process, NOAA performed a review of 
existing RICE documentation and operating procedures, and found that 
those documents can be reasonably adapted to meet the requirements 
written in the rule.
    Comment 6: The focus of the Strategic Operational Plan (SOP) should 
be on the process and desired outcomes, not the assets, products, and 
deliverables. It is too restrictive and binding to presume that 
specific products should/will be delivered. Instead, develop SOPs that 
document processes, such as describing approaches to ensure 
documentation of QA/QC procedures in metadata.
    Response 6: NOAA agrees with the comment that the focus of the 
Operational Plan should be on the process and desired outcomes. The 
intent of the Operational Plan is to identify, at a high-level, how the 
RICE manages and operates the integrated system to achieve the desired 
outcomes. NOAA agrees that over the five year duration of 
certification, the assets, products, and deliverables that contribute 
to the system may change, and new approaches may be preferred to meet 
its objectives. NOAA's intent is that the RICE clearly identify the 
processes it has in place to achieve its desired outcomes, and amended 
the text in Sec.  997.23(d)(1) and (2) accordingly.
    Comment 7: This rule requires identification of the individuals 
responsible for observations system management and data management. Not 
all regional associations have a single individual who fills this role, 
which often is shared among a number of people. The certification, and 
therefore indemnification, process should acknowledge that NOAA has 
allowed regional association structures to develop that are best for 
each region. This section should be clarified to accommodate the 
current operational model and many RAs.
    Response 7: NOAA accepts that RICE structures will vary; and has 
revised the rule to state that, for the purposes of indemnification and 
accountability, a RICE shall identify the individual(s) responsible for 
the coordination and management of observation data across the region, 
and as applicable, the individual(s) for observations systems 
management across the region. These individuals must still satisfy the 
requirements listed in Sec.  997.26(c) to be considered employees of a 
RICE as defined in the rule.
    Comment 8: Personnel evaluation (Rice Management & Data Manager) 
should not be part of certification.
    Response 8: The ICOOS Act mandates that the RICE develop a 
strategic operational plan that ensures ``effective administration'' of 
programs and assets, ``pursuant to standards approved by the Council''. 
The primary purpose of this guideline is to ensure that (1) the RICE 
has a process in place for evaluating the capabilities of key personnel 
and (2) the people hired can perform the duties required. We do not 
believe that requesting a CV is excessive as Federal agencies routinely 
require CVs in grant proposals submissions, federal advisory committee 
nominations, etc., and therefore is not adopting the commenter's 
suggestion.
    Comment 9: In section 997.23(d)(4), an active maintenance oversight 
program would burden operators with submitting detailed maintenance 
records and protocols and would be a

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significant new burden that may result in fewer assets and data streams 
being available to the System. This requirement would be too labor 
intensive for the description of minimal anticipated efforts and costs 
associated with certification outlined under Regulatory Flexibility Act 
section. Furthermore, the rules should be clarified to define what is 
meant by ``ensure'' and also provide an example of how the RICEs are to 
comply with this provision. RAs should be given flexibility in how they 
ensure that those responsible for managing hardware owned and operated 
by the RA (even partially) be calibrated, validated, operated, etc. For 
instance, it should be specified that providing links to established 
procedures addressing these issues at the operators' institutions is 
sufficient to meet this requirement.
    Response 9: NOAA has amended the rule based on reviewers' comments 
of the subjective nature of the word ``ensure'' by removing the 
reference to ``ensuring that those responsible for managing hardware'' 
from this rule and simplifying the language in section 997.23(d)(4) to 
describe the standard operating procedures used for quality assurance 
processes. An example of how the RICEs are to comply with this 
provision is, for assets owned and/or operated by the RICE, the RICE 
should describe a standard operating procedure for equipment 
maintenance according to best practices. NOAA agrees that reviewing 
subcontractors' inventories and equipment history logs would be overly 
burdensome; yet, the rule does not dictate the required actions of the 
RICE, only that the RICE must have a standard operating procedure in 
place. For assets financially supported by the RICE, fully or 
partially, but operated by a subcontractor, the RICE should instruct 
subcontractors to follow best practices and should mandate that 
equipment maintenance reports should be available periodically or by 
request.
    Comment 10: Section 997.23(d)(4)(i) requires more definition. 
Equipment should be specifically defined as capital equipment, e.g., 
exceeding $5000 in value with a shelf life of greater than three years. 
Also, Terms and Conditions to meet this requirement should be supplied 
by NOAA for inclusion in sub-awards from the RAs.
    Response 10: NOAA agrees that Sec.  997.23(d)(4)(i) requires 
clarification, and has amended the rule to include a definition for the 
term equipment, which includes a price floor of $5000. This amount is 
used to be consistent with OMB Circular No. A-122, establishing 
principles for determining costs of grants, contracts and other 
agreements with non-profit organizations. A-122 defines equipment as 
``nonexpendable, tangible personal property having a useful life of 
more than one year and an acquisition cost which equals or exceeds the 
lesser of the capitalization level established by the non-profit 
organization for financial statement purposes, or $5000.'' NOAA 
stresses that even though documented procedures are not required for 
certification for assets below the price floor, RICEs should maintain 
all equipment according to industry best practices.
    NOAA disagrees that it should supply Terms and Conditions for this 
requirement. NOAA has taken a position, based on feedback from the 
RICEs during the development of the rule, that where possible, this 
rule shall avoid being too prescriptive, so as to allow each RICE to 
address the requirements as they see best, given their unique 
situation. NOAA believes that it is the responsibility of each RICE to 
work with their legal counsel and fiscal agents to develop contract 
language that meets their specific needs.
    Comment 11: Section 997.23(f) of the Strategic Operational Plan 
(Data Management and Communication Plan) lists six actions. Shall these 
actions be implemented simultaneously, or can the regional or local 
entity prioritize? Data quality control procedures vary from entity to 
entity. It is going to take time and effort to bring everyone to the 
same level.
    Response 11: All actions must be sufficiently addressed to achieve 
certification. The order by which the actions are addressed is at the 
discretion of the RICE.
    Comment 12: The rules should state how the U.S. IOOS Program 
intends to handle model output, observational grids, or project level 
GIS data layers.
    Response 12: Through this rule, NOAA is not providing guidance on 
model output or any other non-observational data in the certification 
requirements at this time. The IOOS Program Office welcomes a 
discussion with all IOOS partners to develop best practices related to 
these other types of information, but any proposed standards/processes 
would not be tied to certification.
    Comment 13: Will a program that wants to contribute data to an 
IOOS-supported regional data portal be expected to adhere to an IOOS-
sponsored or supported DMAC requirement for metadata (e.g., ISO 19115 
and SensorML) and QA/QC (e.g., QARTOD)? The rule provides examples of 
qualified procedures (e.g., QARTOD, JCOMM/IODE, scientific literature), 
but we interpret these as examples and not mandates. If adherence to 
the specific standards mentioned is mandatory, this will discourage 
many programs from sharing data through IOOS.
    Response 13: NOAA has clarified the guideline to address the 
commenters' concerns. For variables with documented QARTOD procedures, 
these procedures must be implemented and referenced on the RICE's Web 
site. For variables without documented QARTOD procedures, the quality 
control (QC) procedures are subject to the judgment of the RICE until 
QARTOD standards become available, but QC of some type must be 
performed and referenced. The RICE may choose to make data contributors 
responsible for QC and reference the procedures in the DMAC plan, or 
may perform the QC itself. Because the RICE can choose to perform QC of 
the data, we believe this requirement should not substantially deter 
other programs from sharing data through IOOS. Certification does not 
specifically mandate any DMAC requirements for metadata.
    Comment 14: Greater flexibility is needed in the regulations to 
allow the wide spectrum of contributions to IOOS. The RICE should be 
allowed to provide data of various levels of quality to the system as 
long as the provenance of the data being discovered and exposed is made 
easily accessible through metadata that allows the user to assess the 
veracity and quality of the data.
    Response 14: Since NOAA will provide the RICE with liability 
protection for activities related to its work on the dissemination and 
use of observation data, it is important that proper data management 
practices are in place and followed to mitigate the risk of liability. 
At a minimum, all data distributed by the RICE must be quality 
controlled either by the RICE or by the entity providing data to the 
RICE. This is the minimum step necessary to ensure data quality. While 
the RICE may include a description of the provenance of the data in the 
metadata, this does not replace the need to perform quality control on 
all data.
    Comment 15: Documenting the quality control and assurance 
procedures for each individual data stream will be repetitive and time 
consuming. Rather, it would be more realistic to document the quality 
assurance protocols developed by individual data providers/sources. 
Overall, additional guidance detailing best practices and real world 
approaches to applying QC in an operational setting would be useful due 
to the large number of data streams that a RICE makes available.

[[Page 32454]]

    Response 15: Since a data source can produce multiple data streams, 
and since each data stream must be quality controlled, the language was 
not changed. In practice, the RICE does not need to document the 
quality control procedures for each and every data stream. Data streams 
with similar QC procedures can be combined into larger categories, and 
the QC procedures for these larger categories can be described in the 
RICE's Data Management Plan as part of the certification application. 
The comment also asks for guidance on real world approaches to applying 
QC in an operational setting. The new rule language mandates QARTOD 
procedures for variables which QARTOD manuals are available. These 
manuals establish a framework that addresses real time collection and 
processing of these data through QC tests with codeable instructions. 
For variables which QARTOD manuals do not exist, quality control 
procedures are subject to the judgment of the RICE, providing 
flexibility to the RICE.
    Comment 16: Federal agencies collecting ocean data that are 
distributed through RICE portals should have the QC responsibility for 
their own data streams. It would be helpful if the certification 
document clarified the nature of observing programs and networks that 
are the result of federal-regional partnerships, particularly CDIP and 
NERRS.
    Response 16: NOAA does not expect that RICEs should perform their 
own QC on Federal data sources, but are encouraged to reference 
existing Federal QC procedures if the RICE makes these data available. 
For CDIP and NERRS, these programs are considered largely Federal and 
thus the RICE would not be required to perform QC on these data, if 
they are redistributing that data as is. In the case of CDIP, if a RICE 
deploys a wave buoy and provides that data independently on the RICE 
data portal, QC must be performed according to QARTOD standards, if 
available, or documented procedures if QARTOD manual is not available. 
For other federal-regional partnership programs that may exist 
currently or in the future, RICEs and the IOOS Program Office will 
assess on case by case basis.
    Comment 17: Some Federal data sources serve RICE data, and it seems 
unreasonable for IOOS to require RICEs to document or enforce 
additional standards and protocols for data that is `qualified' to be 
presented via these other federal portals.
    Response 17: Within NOAA, when a Federal center receives a RICE 
data source, the QC procedures of that center are required to ensure 
NOAA meets its own indemnification. For example, in the case of NDBC, 
mentioned in the comment, NDBC applies QC procedures before making the 
data public, so in effect, the RICE data is not ``qualified as is'' to 
be disseminated via NDBC. Further, the data that NDBC rebroadcasts is 
only a subset of the total RICE data. Finally the process is that the 
RICE data is simultaneously disseminated to NDBC and the RICE data 
portal. The RICE does not wait until NDBC has performed the QC to 
disseminate their data. Therefore, NOAA maintains for the purpose of 
certification, the RICE must separately perform quality control on the 
data.
    Comment 18: We request that the US IOOS Program Office host 
discussion sessions with the IOOS community about the IOOS standards 
for metadata and quality assurance and how all the individual parts fit 
together.
    Response 18: NOAA agrees discussion sessions would be beneficial. 
The IOOS Program Office hosted annually since 2008 a collaborative 
working session with the Regional Association Data Managers where 
quality control and metadata standards have been discussed. 
Specifically at the Data Management and Communications Meeting in 
September, 2013 in Silver Spring a session was dedicated to the 
implementation of IOOS certification requirements and data management 
requirements from NOAA. For the last three years, at both the Spring 
and Fall IOOS association meetings, data management has been on the 
agenda. These topics have been discussed at a number of IOOS Regional 
Association meetings and it is almost always requested and discussed at 
the individual regional meetings. The IOOS Program Office will continue 
to participate/host additional discussion sessions.
    Comment 19: The RICE cannot exert much control over partners with 
little or no financial support from IOOS. The inclusion of a limited 
set of metadata and QA/QC flags transmitted to the RICE is not 
unreasonable from non-IOOS funded data streams. However, data generated 
with IOOS funding would be a different matter as the RICE would have 
more control over those operations and data processing steps. RAs 
should have the option of serving data from non-federal providers who 
don't receive financial support from the RAs without going through the 
same level of QC and oversight that they provide for organizations they 
do support. A suggestion would be to have different categories of data 
streams on the portal: Federal, RA-supported, and other. Data streams 
would be clearly identified as to their source and which category they 
fell in, and metadata would be provided to allow users to decide which 
data streams were adequate for their use.
    Response 19: NOAA disagrees that the RICE should have the option of 
serving data from non-federal providers who don't receive financial 
support from them without going through the same level of QC and 
oversight that they provide for organizations they do support. QC must 
be performed on all data that the RICE makes available, regardless of 
funding source. The quality control requirements are not overly 
burdensome since the rule does not require that the RICE partners 
perform their own QC. Rather, the RICE is responsible for QC and may 
assign the responsibility to its partners or may choose to perform the 
QC itself. NOAA does not agree with the idea of developing data 
categories based on financial contribution from the RICE. The premise 
of IOOS is to leverage capabilities from a variety of Federal, non-
Federal, academic, industry, etc. sources in order to increase the 
availability and use of coastal and ocean information. Data categories 
based on funding would result in confusion and would oppose the concept 
of open data sharing through the RICE.
    Comment 20: It is not clear why the ``RICE's plans and strategies 
for diversifying funding sources and opportunities;'' is relevant to 
integration into the national program. This should not be part of a 
federal certification process.
    Response 20: NOAA agrees that the requirement is not relevant to 
integration into the national program, and has removed this requirement 
from the rule.

Gaps Identification

    Comment 21: Certification should not establish new unfunded 
mandates. The current certification process establishes the need for an 
online ``Regional Asset Inventory'' that has previously not been 
required.
    Response 21: The rule sets minimum requirements for certification 
based on the ICOOS Act language and the IOOC approved certification 
criteria. NOAA does not agree that the rule establishes unfunded 
mandates, as the pursuit of certification is voluntary. Regarding the 
Gaps Identification requirement referenced in the comment, the rule 
does require the establishment of a regional asset inventory, but 
states that a ``database or portal accessible for public viewing'' 
could demonstrate that a RICE meets this requirement.

[[Page 32455]]

Financial Oversight

    Comment 22: Requiring the RICE's subcontractors document operating 
and maintenance costs for their observing platforms that contribute 
data even when IOOS funds may not contribute to that operation or 
maintenance may discourage participation in the system. Certification 
should be a five year process with no pieces in between. Operating 
costs should not be required annually.
    Response 22: A RICE is only required to document its annual 
operating and maintenance costs for assets owned and/or operated by the 
RICE as defined. The annual financial information is intended to report 
on expenditures by the RICE. For example, in a RICE to subcontractor 
relationship, only the RICE funds to the sub-contractor would be 
included in the reports. Funds the sub-contractor receives from other 
entities would not be included in the report by the RICE. The annual 
budgets submitted by the RICE, as part of a cooperative agreement, will 
meet this requirement.
    With respect to the commenter's concern that certification ``should 
be a five year process with no pieces in between,'' NOAA revised Sec.  
997.25 (c) to clarify that the RICE need only submit the annual 
operating and maintenance costs upon request. While NOAA understands 
the desire to have manageable tasks associated with certification, it 
believes that although a RICE is certified, there should be measures in 
place to ensure accountability. The Act requires a RICE to ``comply 
with all financial oversight requirements established by the 
Administrator, including requirements relating to audits.'' NOAA must 
be able to have a process, in addition to audits, to ensure fiscal 
oversight. Requiring the RICE to annually document its operations and 
maintenance costs, and providing those upon request, is one way to 
achieve this.

Civil Liability

    Comment 23: One of the main incentives for a Regional Association 
(RA) to apply for certification is for liability protection. The 
extension of liability protection to no more than three individuals 
doesn't seem to fulfill the sense of the ICOOS Act. It is not clear why 
limiting indemnification is relevant or necessary. The limitation of 
protection to three individuals should be removed so as to allow the RA 
to submit the names of all individuals responsible for operations, 
including Board members and contractors, to NOAA for review and 
approval. Civil liability should not be limited when all affiliates are 
potentially at risk for legal action as well. This will lead to 
challenges recruiting Board members and the kind of staff members 
necessary to continue to develop the U.S. IOOS system at the regional 
level. Additional language is needed to explain the meaning and extent 
of ``The individual is responsive to federal government control.''
    Response 23: NOAA agrees there may be more than three individuals 
who are responsible for RICE operations. NOAA has revised the rule, 
allowing a RICE to identify more than one individual responsible for 
each of these areas: Overall system management; observations system 
management across the region; and, management of data operations across 
the region. In order to be approved for certification, a RICE must 
demonstrate that these individuals are responsible for managing 
operations across the region, and are responsive to federal control.
    The ICOOS Act associates civil liability to employees. While the 
ICOOS Act does not clearly define employee, causing some ambiguity 
about who qualifies for the extension of civil liability, the term 
employee does have specific meaning in Federal tort law. According to 
the Federal Tort Claims Act, and for the purposes of this rule, an 
employee of the government includes, ``persons acting on behalf of a 
federal agency in an official capacity, temporarily or permanently in 
the service of the United States, whether with or without 
compensation.'' Given this definition, to be considered a RICE employee 
under this rule, an individual must be formally acknowledged by NOAA 
and that individual shall be responsive and accountable to NOAA.
    In response to the comment suggesting that NOAA further explain the 
``meaning and extent of `The individual is responsive to federal 
government control,' '' NOAA has chosen to leave the language of this 
rule unchanged in order to retain flexibility in working with each 
RICE. This approach is necessary due to the variations in RICE 
organizational structures and the mechanisms available to NOAA to 
ensure RICE employee responsiveness. Since RICEs by their nature 
operate through the extensive use of partnerships and non-traditional 
employee/employer relationships, this creates challenges in applying 
the definition of employee from Federal tort law.
    NOAA has identified in the rule, those positions that most closely 
meet the intent of the meaning of employee from Federal tort law. The 
positions identified in the rule have significant impact on, and are 
influential in, assuring the reliability of the data. As such they are 
in positions to mitigate the risk of liability arising from the 
dissemination and use of observation data. These positions work across 
the region and are accountable to the RICE and NOAA for data 
collection, dissemination, and use.
    Comment 24: It is recommend that NOAA and the IOOS Program Office 
work with the regional associations to undertake a full review of the 
options available to limit the RICE's liability risk.
    Response 24: NOAA is available to discuss the rule and how it will 
be implemented. NOAA understands the commenter's concern about a RICE's 
liability risk, but each RICE should seek its own legal advice.
    Comment 25: Please clarify--do data providers or regional partners 
to GCOOS have to have individual contracts, leases, grants, or 
cooperative agreements with NOAA to be protected, or can their 
membership in GCOOS qualify them as protected from civil liability? We 
strongly encourage the latter to minimize costs and facilitate 
participation in the RICE and IOOS.
    Response 25: While NOAA appreciates the RICE's concern about the 
liability status of their partners, certification is for the RICE alone 
and the extension of civil liability protection is to certified RICEs 
and their employees only. Under the rule, employees of a RICE are 
defined as those individuals filling the positions identified in the 
rule and are the only individuals covered by the civil liability 
protection. Neither membership in a RICE or a contract, lease, grant, 
or cooperative agreement with NOAA is sufficient to qualify an entity, 
organization, or individual as protected from civil liability.
    Comment 26: The benefits of certification are not clear. One is the 
extension of federal tort liability protection to two or three 
employees of a certified RICE. I say two or three because it is not 
clear that three are actually covered. Sec.  997.30(c)(2) states that 
the individuals to be protected must be identified under Sec.  
997.23(d)(3), which only lists two positions.
    Response 26: NOAA agrees that paragraph (c)(2) of the civil 
liability section is not clear and revised the section to account for 
all the individuals that may fill the three positions identified in 
Sec.  997.23(d)(3) and Sec.  997.23(f)(1)(i) and to be consistent with 
the definition of Employee of a Regional Information Coordination 
Entity in the rule.

[[Page 32456]]

    Comment 27: The primary responsibility of an employee and/or Board 
of Directors is to the corporation. As such, conceding power to another 
organization (NOAA) in oversight of RICE employees and/or contractors 
as required in the regulations (Sec.  997.30) has the potential for 
conflict of interest and is unacceptable. Compliance with program 
requirements is already legally covered through the Cooperative 
Agreements.
    Response 27: In order for the federal government to afford civil 
liability to an employee, there must be a relationship between the 
federal government and the employee characterized by responsiveness and 
accountability. Certification requirements are separate and distinct 
from the cooperative agreements, which are awarded through a 
competitive process. A funding agreement with NOAA is not a requirement 
for certification. Having a stand-alone certification process ensures 
that NOAA has a mechanism for working with certified RICEs.
    Comment 28: Shall a non-federal employee who is participating in 
the System, being paid one month salary by contract (ICOOS, etc.) and 
eleven month by his or her local entity, be considered, with respect to 
tort liability, an employee of the Federal Government?
    Response 28: The extension of civil liability protection is to 
employees of certified RICEs only as defined in the rule.
    Comment 29: If the local entity has a ``Disclaimer'' on its own Web 
site for data users that it does not accept liability for any damages 
or misrepresentation caused by inaccuracies in the data or as a result 
of changes to the data caused by system transfers, transformations, or 
conversions, nor is there responsibility assumed to maintain the data 
in any manner or form, will this Disclaimer contradict with the IOOS 
tort liability/civil liability?
    Response 29: The grant of civil liability protection applies only 
to a certified RICE and its employees identified in Sec.  997.26(c)(2). 
A disclaimer would not affect this status.
    Comment 30: Switching the focus of certification to those 
activities that are 100% funded by IOOS could help simplify the 
limitation of what is covered under indemnification, without also 
limiting the number of potential individuals that could be impacted by 
legal action.
    Response 30: The extension of liability coverage is to the RICE and 
its employees as defined in the rule, and is independent of funding 
amounts or sources that support the dissemination and use of 
observation data. The certification process is separate from the 
competitive grants process that NOAA uses to fund the development of 
regional observing systems and the regional entities that coordinate 
this development.

Certification Process

    Comment 31: The draft rules define ``owned and/or operated'' as an 
asset that is supported financially in part or full by the RICE. This 
implies that we would be required to meet these standards even, if we 
are providing only a small portion of the operational costs for an 
asset. We recommend that this section be reworded to be less stringent 
and that the definition of ``owned and/or operated'' be changed to an 
asset that is supported financially in full by the RICE.
    Response 31: This rule clearly defines ``owned and/or operated'' as 
including any asset that is supported financially in part or in full by 
the RICE, regardless of the amount of this support. To be certified, a 
RICE must meet the standards for all assets that fall within this 
``owned and/or operated'' definition, even if the RICE provides 
relatively little funding to support those assets. NOAA stands by this 
definition and disagrees with the comment suggestion that this 
definition ``be changed to an asset that is supported financially in 
full by the RICE.'' In order to certify a RICE and extend liability 
protection under the Act, NOAA must ensure that all data distributed by 
that RICE, regardless of funding source or amount, meets quality 
assurance standards.
    Comment 32: The description also fails to state that there will be 
one RICE per region. NOAA should clarify the language to state that, 
``Existing Regional Associations in IOOS will be prioritized for the 
designation as the single RICE for IOOS in the region.''
    Response 32: NOAA cannot accept the suggested text because it is 
inconsistent with the Act and would give preferential treatment to some 
applicants over others. The Act defines RICEs as including Regional 
Associations, but does not limit RICEs to only these entities. Further, 
the Act makes no mention of limiting the number of RICEs by geography 
or any other criteria. NOAA must review all applications it receives 
and objectively evaluate them against this rule's requirements.
    NOAA is committed to having regional entities that cover the entire 
U.S. ocean and Great Lakes coasts. These regional entities are an 
important component of the overall IOOS system. NOAA has worked closely 
with the eleven regional associations that belong to the IOOS 
Association to develop the organizational and observing system capacity 
to serve in the role of a RICE, and expects that these entities will be 
well suited to become certified RICEs should they choose to apply. 
However, NOAA is required to consider all the applications that it 
receives for certification as a RICE.
    Comment 33: Provide guidance on what happens if an RA chooses not 
to be certified or becomes decertified. Would they still be 
``integrated into the System''? If a RICE is decertified, will they 
risk losing funding or other benefits?
    Response 33: Certification is the formal process for incorporating 
a RICE into the System. A regional association that chooses to not 
pursue certification will not be formally incorporated into the System. 
If a RICE is decertified, that entity will no longer be incorporated 
into the System and will not receive the benefits of being a certified 
RICE. The certification process is separate from the competitive grants 
process that NOAA uses to fund the development of regional observing 
systems and the regional entities that coordinate this development. It 
is not the intent of NOAA to tie certification to the competitive 
funding program.
    Comment 34: Section 997.13(c) requires written notification from 
the RICE to NOAA and approval by NOAA of any changes to the ``details 
originally provided'' for the Strategic Operational Plan (SOP). This 
language is too prescriptive and burdensome. An annual statement could 
be filed outlining any substantive changes at an RA. Change 997.13(c) 
to read: A certified RICE shall provide NOAA with written notification 
of the RICE's intention to substantively change its organizational 
structure or SOP.
    Response 34: NOAA concurs that the original language is too 
prescriptive and has revised Sec.  997.13(c) to now require a RICE to 
notify NOAA only when substantive changes are made to its 
organizational structure or Strategic Operational Plan, rather than 
when any changes to the details of the structure or Plan as published 
the proposed rule.
    Comment 35: I recommend that the RICEs be given 45 days, not 30, to 
request in writing a reconsideration of NOAA's decision to decertify or 
to notify NOAA of corrective action.
    Response 35: NOAA concurs and, based on this public comment, has 
revised Sec.  997.15(c) to now state that RICEs have 45 days to request 
reconsideration of NOAA decision.

[[Page 32457]]

    Comment 36: The rule should be amended to require that NOAA inform 
RICEs of the audit procedure that will be used, and also to provide 
adequate notice of its intent to audit. Under what conditions may NOAA 
audit a RICE? Will ``just cause'' be required to audit a RICE or can it 
be done randomly?
    Response 36: NOAA concurs that a RICE be given notice of an audit 
and that NOAA will coordinate with the RICE on the timing and process 
for the audit. Section 997.15(a) has been revised to reflect this 
policy. NOAA reserves the right to conduct audits as needed to ensure 
the integrity of the certification process and will work with the RICEs 
to mitigate potential impacts of the audit.
    Comment 37: The rules should acknowledge that compliance will 
depend on available resources. Each year, the IOOS Program Office works 
with individual RAs on descoping the annual budgets. This process 
should be used to fulfill this requirement. Approval by the U.S. IOOS 
Program Office of the annual spending plans through the descoping 
process should account for compliance with these regulations.
    Response 37: Each organization must decide whether they are going 
to pursue and maintain certification based on their available 
resources. Certification is not dependent on any funding amount or 
agency funding opportunity, and as such, compliance with the 
certification requirements cannot be re-evaluated year to year based on 
funding levels. NOAA agrees that existing documents can serve the 
purpose of showing compliance with the certification requirements and 
has indicated this in section 997.20(b).

General Comments

    Comment 38: Complying with this requirement would be a major new 
burden on our limited resources. NOAA is underestimating the time, 
effort, and expense that it will take to come into full compliance with 
the proposed regulations. The time anticipated to complete the 
application packet should be no more than one week (40 hours). We 
estimate it would take roughly 2-2.5 person-months effort for the 
initial submittal, ~1.5-2 person months every 5 years for 
recertification as requirement change, ~1 person month each year for 
annual compliance, and an unknown amount of time to comply with audit 
requirements. Any cooperative agreement with NOAA should be adjusted to 
reflect these real costs.
    Response 38: The estimate of two or two and one half person months 
(320-400 hours) effort for the initial submittal is not far from the 
293 hour estimate put forth in the proposed rule, and was done without 
the benefit of the rule implementation guidance that NOAA is 
developing. NOAA points out that this effort is only required every 
five years. We disagree with the estimate that annual compliance will 
require 160 hours of effort, and NOAA is committed to working with a 
RICE to mitigate the cost of any audit.
    When estimating the amount of effort to submit an application, NOAA 
must include not just the time necessary to fill out the form and 
submit the application, but also the time estimated to meet the 
requirements for certification. This amount will vary depending on the 
relative maturity of the applicant organization.
    Since no justification is given for the statement that the 
application packet should be no more than 40 hours, we can't respond to 
its viability.
    NOAA disagrees with the comment that it should adjust its existing 
cooperative agreements with the entities that are interested in 
pursuing certification. Any applicant with a financial agreement with 
NOAA can direct their resources towards becoming certified. Through a 
series of cooperative agreements, NOAA has funded the eleven Regional 
Associations since FY 2005 to develop the organizational structure, 
operating procedures, and data management capacity necessary to serve 
in the role of RICEs. Certification is optional, and a Regional 
Association opting to pursue certification can re-prioritize existing 
resources to do so, since much of the effort, particularly the data 
management work, is consistent with their overall work plans 
established for these agreements. Finally, since application for 
certification is not mandatory, each organization can determine if the 
benefits of being certified is worth the cost.
    Comment 39: This section should enumerate all potential benefits 
for a RICE for becoming certified.
    Response 39: The potential benefits of a RICE becoming certified 
are identified in the ``Background'' and ``Classification'' sections in 
this rule.
    Comment 40: The rule should clearly state that RICEs not seeking 
certification will not lose their future eligibility for funding, or 
the amount of funding they receive as a regional association within 
U.S. IOOS, or other penalties.
    Response 40: U.S. IOOS will have regional entities that cover the 
entirety of the U.S. ocean, coast, and Great Lakes. These regional 
entities are an important component of the overall U.S. IOOS system. 
The certification process is separate from the competitive grants 
process that NOAA uses to fund the development of regional observing 
systems and the regional entities that coordinate this development. The 
establishment of a certification process is a requirement of the ICOOS 
Act and creates the formal process for incorporating a RICE into the 
System. It is not the intent of NOAA to tie certification to the 
competitive funding program, nor is it NOAA's intent to favor one 
regional entity over another based on certification decisions.
    Comment 41: In general it is unclear what level of detail is 
required to satisfy the certification criteria. Detailed and reviewed 
examples of what would pass the process would be very useful. With an 
inevitable turn-over of personnel at both the US IOOS program office 
and in the regions, it is important the certification rules be as clear 
as possible about the requirements.
    Response 41: NOAA will publish certification guidance online at 
http://www.ioos.noaa.gov/certification within 30 days of publishing the 
final rule in the Federal Register.
    Comment 42: Certification requirements should be in proportion to 
the scale of the existing programs. For example, current funding levels 
do not allow for the clearest organizational design and while RAs may 
desire to have an observing system manager current funding levels may 
not allow such a position to exist.
    Response 42; This final rule sets minimum requirements for 
certification based on the ICOOS Act language and the IOOC approved 
certification criteria. NOAA understands that regional entities are 
unique and has avoided being prescriptive in the requirements when 
possible.
    Comment 43: We recommend that you keep implementation requirements 
as simple as possible, and tie them to the existing 5-year cooperative 
agreement proposals and annual descoped proposals. Execution of the 
cooperative agreement, also having a life-span of five years, would 
therefore serve as certification and meet the requirements of the ICOOS 
Act.
    Response 43: The certification process is separate from the 
competitive grants process that NOAA uses to fund the development of 
regional observing systems and the regional entities that coordinate 
this development. The establishment of a certification process is a 
requirement of the ICOOS Act and creates the formal process for 
incorporating a RICE into the System. It is an agreement between NOAA, 
as the lead agency for the System, and the RICE. The cooperative 
agreements that

[[Page 32458]]

fund the development of regional IOOS are an agreement between the IOOS 
Program under NOAA and the regional associations that have been awarded 
funding through the competitive funding opportunity offered by NOAA. 
NOAA agrees that existing documents can serve the purpose of showing 
compliance with the certification requirements and has indicated this 
in the rule.
    Comment 44: The criteria should facilitate the use of ocean 
acidification research and monitoring for implementation of the Clean 
Water Act. RICEs should be informed of Clean Water Act water quality 
criteria and be required to provide their monitoring data and other 
relevant information to EPA, tribes, and states for use during their 
water quality assessments. Data quality protocols should be preapproved 
by EPA, tribes, and coastal states so that ocean acidification data can 
automatically be used for water quality assessments.
    Response 44: The U.S. IOOS supports the free and easy access to 
data by all stakeholders interested in ocean acidification. Many of the 
regional associations and their partners are actively collecting and 
distributing ocean acidification data. These organizations are working 
closely with federal and non-federal partners on data collection and 
data management processes.
    Comment 45: State and industry monitoring programs under the Clean 
Water Act should be adapted to collect data relevant for ocean 
acidification.
    Response 45: This recommendation is outside the scope of the ICOOS 
Act and the certification of RICEs.
    Comment 46: As written the regulations impose burdens that are 
likely to prevent many non-federal data providers from contributing 
their important assets to the IOOS System. I request that NOAA review 
the regulations and where possible within the mandate of the law to 
simplify them and narrow their scope so as to encourage participation 
in the building of the IOOS rather than discourage it.
    Response 46: The rule sets minimum requirements for certification 
based on the ICOOS Act language and the IOOC approved certification 
criteria. It is not NOAA's intent to create disincentives to 
participation in the U.S. IOOS, but to establish formally, the 
organizational qualities of a RICE and ensure a level of data 
collection, management, and distribution practices are in place. NOAA 
followed the notice and comment requirements set forth in the 
Administrative Procedure Act in the development of this action. NOAA 
has revised the rule based on the comments it received where possible, 
with the intent of improving the rule.
    Comment 47: While many of the criteria related to governance might 
be good suggestions for organizational operations, they do not directly 
influence or improve the ability of a RICE to be ``integrated into the 
System,'' particularly in the context necessary to support 
indemnification for the collection, dissemination, and use of 
observation data.
    Response 47: The requirements in this final rule are responsive to 
the language in the ICOOS Act and the IOOC approved Certification 
Criteria. Section 12304(c)(4)(A) of the ICOOS Act identifies the 
requirements a RICE shall meet, including those related to an 
organizational structure. These are further developed in the IOOC 
Certification Criteria and form the basis for the requirements 
contained in this rule.
    Comment 48: This rule does not reflect the range of efforts that 
comprise IOOS including the concept of a spectrum of research and 
operations that was embraced and the 2012 IOOS Summit. Not all aspects 
of RA systems are operational (Sec.  997.23(f)(4)). DMAC processes 
should include those for modeling which is not mentioned in the 
certification requirements.
    Response 48: NOAA disagrees that this rule does not reflect the 
range of efforts that comprise IOOS. The rule makes several references 
to the different components that make up the System, such as in Sec.  
997.21(a) and Sec.  997.23(c)(2). This rule sets minimum requirements 
for certification based on the ICOOS Act language, which includes 
references to the System Plan, and the IOOC approved certification 
criteria. While a new concept of a spectrum of research and operations 
was put forth at the 2012 IOOS Summit, this concept has yet to be 
formally recognized in the way the System Plan has.
    The focus is on creating a process to certify a RICE and 
incorporate it into the System. NOAA acknowledges that the requirements 
are not inclusive of all the activities that a RICE might engage in, 
such as modeling. As mentioned in Response 12, NOAA is not providing 
guidance on model output or any other non-observational data in the 
certification requirements at this time. Since the extension of 
liability protection covers observational data, the DMAC requirements 
are limited to observational data. NOAA will consider including 
requirements for activities like modeling in the future.
    Comment 49: Certification should respect the operational integrity 
and independence of the RAs. One of the strengths of the RAs and 
benefits for NOAA is their ability to act nimbly and be responsive. The 
current regulations would curtail that ability.
    Response 49: NOAA disagrees that this rule would curtail the 
ability of an RA to act nimbly and be responsive to regional issues and 
stakeholder needs. Since the comment provides no specifics on how the 
regulations would curtail the ability of the RAs to continue to act 
nimbly and be responsive to new priorities and needs, we cannot respond 
more substantially to it. NOAA has revised Sec.  997.13(c) to now 
require a RICE to notify NOAA only when substantive changes are made to 
its organizational structure or Strategic Operational Plan, rather than 
when any changes to the details of the structure or Plan as published 
the proposed rule. NOAA must have in place a process to ensure 
accountability, but it does not intend to be involved in the day to day 
operations of the RICE.
    Comment 50: We fear that the application of these rules, 
particularly on the data management and QA/QC process, may discourage 
data sharing, thereby setting back many of the gains made by the 
program to date and being counterproductive to the IOOS goal of 
increasing stakeholder access to data and fostering data discovery.
    Response 50: NOAA has addressed some of the concerns received in 
the comments about the rule's data management requirements being 
onerous and discouraging data sharing by clarifying the rule 
requirements. The RICE may choose to make data contributors responsible 
for QC, or may perform the QC itself. Because the RICE can choose to 
perform QC of the data, we believe this requirement should not 
substantially deter other programs from sharing data through IOOS. 
Instead of being counterproductive to the U.S. IOOS goals and 
objectives, NOAA thinks the requirements for data quality assurance and 
quality control procedures strengthen the U.S. IOOS by ensuring data 
management practices are in place for all data that are distributed 
through the System.
    Comment 51: We request that the US IOOS Program Office host 
discussion sessions with the IOOS community about the IOOS standards 
for metadata and quality assurance and how all the individual parts fit 
together.
    Response 51: NOAA is happy to work with the IOOS community to 
discuss how standards for metadata and quality assurance, along with 
other data management processes fit together. The IOOS Program has 
regular discussions with the regional data management

[[Page 32459]]

community and continues to sponsor the QARTOD effort.

Classification

Executive Order 12866

    Under Executive Order (E.O.) 12866, if the proposed regulations are 
a ``significant regulatory action'' as defined in Sec.  3(f) of the 
Order, an assessment of the potential costs and benefits of the 
regulatory action must be prepared and submitted to the Office of 
Management and Budget (OMB). OMB has determined that this action is not 
a ``significant'' regulatory action under E.O. 12866.

Regulatory Flexibility Act

    Pursuant to section 605 of the Regulatory Flexibility Act (RFA), at 
the proposed stage, the Chief Counsel for Regulation of the Department 
of Commerce certified to the Chief Counsel for Advocacy of the Small 
Business Administration that this rule will not have a significant 
economic impact on a substantial number of small entities.
    During the public comment period for the proposed rule, NOAA 
received several comments from the IOOS Regional Associations regarding 
the economic impact of pursuing certification; NOAA did not receive any 
comment from the Small Business Administration (SBA) on the matter.
    The comments NOAA received on the certification included that:
     NOAA is underestimating the time, effort, and expense that 
it will take to come into full compliance with the proposed regulations 
and would be a major new burden on the limited resources of the RICE.
     The assumption that the information needed to document 
compliance with the regulations is already generally available is 
incorrect. Several of the documents that are requested will need to be 
assembled and formatted from existing documents.
     The rule might have the unintended consequence of reducing 
the amount of non-federal data now being made available through the 
RICE's regional portals. NOAA responds to the comments as follows:
    The Integrated Coastal and Ocean Observation System Act of 2009 
(ICOOS Act or Act) directs NOAA to ``promulgate program guidelines to 
certify and integrate non-Federal assets, including regional 
information coordination entities into the System.'' This rule 
establishes the criteria and procedures for certifying and integrating 
RICEs into the Integrated Coastal and Ocean Observation System 
(System), in compliance with the ICOOS Act.
    Specifically, the rule requires RICEs to provide NOAA with certain 
information about their organizational structures, financial 
capabilities and makeup, oversight, and data quality assurance methods 
in order to obtain certification under the ICOOS Act. In return for 
providing NOAA with data of known quality via replicable means and with 
oversight, NOAA will provide the RICEs with liability protection for 
activities related to their work on the dissemination and use of 
observation data. Integration into the System formally establishes the 
role of the RICE and ensures that the data collected and distributed by 
the RICE are managed according to the best practices, as identified by 
NOAA.
    Currently, there are eleven RICEs that NOAA expects may be impacted 
by these regulations, corresponding to those entities that currently 
coordinate the regional ocean and coastal observing system efforts of 
the U.S IOOS. RICEs are generally partnerships of entities in the 
academic, private, governmental, tribal, and non-governmental sectors. 
Five of the RICEs are organized as not-for-profit organizations under 
Sec.  501(c)(3) of the Internal Revenue Code; the other six are 
organized pursuant to Memorandums of Agreement between the constituent 
members. Most of these eleven RICEs employ from three to five full or 
part-time individuals, either directly or as contractors. Some or all 
of these RICEs may be considered ``small organizations'' under the RFA, 
although that status is unclear. 5 U.S.C. 601(4).
    Regardless of organizing instrument, RICEs primarily depend on 
funds from NOAA for their operations. Through a series of cooperative 
agreements, NOAA has been funding these eleven RICEs since FY 2005 to 
develop the organizational structure, operating procedures, and data 
management capacity necessary to serve as the entities responsible for 
planning, coordinating, and operating the regional observing systems. 
Funding levels to build the organization and coordination capacity of 
these eleven RICEs, made available through these cooperative 
agreements, varies by region, but has typically ranged from $300K to 
$400K per year per RICE. In addition, beginning in FY 2008, each of 
these eleven RICEs entered into cooperative agreements with NOAA to 
support data collection, data management, and development of products 
and services. In FY 2012, the funding amounts for these eleven RICEs 
ranged from $1.4 million to $2.5 million per RICE.
    This rule establishes generally applicable criteria for data 
collection and quality that all RICEs must meet, in order to be 
incorporated into the System and to obtain the liability protection 
under the Act. In the proposed rule, NOAA set out the expected time of 
293 hours that RICEs may need to comply with these rules and submit 
their applications for incorporation. The additional documentation 
requirements will help ensure that all RICE data meets the same minimum 
standard of quality, and it will help NOAA verify compliance with this 
rule's requirements. NOAA acknowledges that undertaking these efforts 
may result in some significant time outlays by RICEs, in particular 
because it may require them to create new procedures to document data 
management practices. However, NOAA does not expect the RICEs will 
incur significant costs, but would instead re-prioritize existing 
resources, as a result of this rule, because these efforts will not 
affect their current funding agreements with NOAA, and much of the 
work, particularly the data management work, is consistent with their 
overall work plans established for these agreements.
    NOAA will allow RICE's to use other documents they may already 
possess to demonstrate they meet certification requirements. Thus, NOAA 
does not expect the other costs associated with organizing and 
submitting the information required for certification to NOAA will be 
significant because in the case of the regional associations, this 
information is similar to what has been developed as part of their NOAA 
funded work.
    Additionally, most RICEs have some data management and quality 
control procedures in place. NOAA acknowledges that satisfying the 
certification requirements may result in a RICE having to re-allocate 
existing funds to implement new data management practices, and to 
document that required data management practices are in place. NOAA 
based its hourly burden estimate on the time it would take a RICE, of 
average maturity, to meet the standards, but expects that some RICEs 
will expend less time and fewer resources to meet the new requirements. 
However, since the RICEs have different levels of data management 
maturity and have applied varied amounts of staff and financial 
resources towards data management, NOAA cannot determine the exact 
costs this rule may impose on any given RICE.
    Finally, NOAA notes that this rule does not require RICEs to incur 
these expenses or time to become certified. RICEs may still apply for 
grants from NOAA, even if they are not certified. Indeed, NOAA expects 
those RICEs currently receiving NOAA funds under

[[Page 32460]]

the ICOOS Act to seek certification, but again, lack of certification 
does not preclude funding opportunities. NOAA does not intend to create 
disincentives to participate in the U.S. IOOS, but rather to formally 
establish the organizational qualities of a RICE to ensure a high 
uniform level of data collection, management, and distribution 
practices, which NOAA will certify. Therefore, if a RICE wants to be 
incorporated into the System, and receive the liability protection from 
NOAA the Act authorizes, then they will need to be certified which 
includes ensuring their data collection and management practices meet 
the standards set out in this rule.
    Because this rule does not require RICEs to incur any costs to 
continue operating, but only if they seek certification and the 
benefits of liability protection under the ICOOS Act, and because the 
costs to RICEs that seek certification will vary, NOAA maintains that 
this rule will not have a significant economic impact on a substantial 
number of small entities. Therefore, no Regulatory Flexibility Analysis 
is required, and none has been prepared.
    Nonetheless, in response to the comments to the certification under 
the RFA that NOAA received during the comment period to the propose 
rule, NOAA has made the following changes to this final rule:
     Revised Sec.  997.15(a) to state that a RICE be given 
notice of an audit and that the NOAA will coordinate with the RICE on 
the timing and process for the audit.
     Revised Sec.  997.13(c) to require a RICE only seek 
approval from NOAA for substantive changes to its organizational 
structure or Strategic Operational Plan.
     Revised Sec.  997.15(c) to allow a RICE 45 days to request 
in writing a reconsideration of NOAA's decision to decertify or to 
notify NOAA of corrective action.
     Revised Sec.  997.23(d)(4)(i) to bound the extent of the 
requirement to a tangible asset that is functionally complete for its 
intended purpose and has a capital cost of over $5000. Revised Sec.  
997.23(f)(3) to state that the RICE is not responsible for performing 
quality control on data it makes available that is accessed from a 
federal data source.
     Deleted the requirement (proposed as Sec.  997.23(g)(2)) 
that a RICE describe it plans for diversifying funding sources.

Paperwork Reduction Act

    This rule contains collection-of information requirements subject 
to the Paperwork Reduction Act (PRA), which OMB has approved under 
control number 0648-0672.
    It is expected that there will be a total of eleven applicants, 
corresponding to those entities that currently coordinate the regional 
ocean and coastal observing system efforts of U.S. IOOS, that will 
pursue certification as a RICE. The response time for each applicant is 
estimated to be 290 hours. The burden of effort associated with the 
collection of information is needed to demonstrate that the necessary 
policies, standards, data, information, and services to function in the 
role of a RICE are appropriately established, coordinated, overseen and 
enforced.
    During the public comment period for the proposed rule, NOAA 
received several comments regarding the estimated amount of effort 
necessary to develop and submit the information requested to document 
compliance with the certification requirements. In summary, these 
comments expressed that NOAA underestimates the time, effort, and 
expense that it will take to come into full compliance with the 
proposed regulations and would be a new burden on the limited resources 
of the RICE. These comments, and NOAA's response, are addressed in the 
``Response to Comments'' section above.
    NOAA did not receive any public comments on the application form; 
however the form was revised to incorporate the changes to the rule 
requirements. NOAA does not expect that these changes will result in 
any additional burden on applicants.
    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.

    Dated: May 30, 2014.
Holly A. Bamford,
Assistant Administrator for Ocean Services, and Coastal Zone 
Management.

List of Subjects in 15 CFR Part 997

    Science and technology, Ocean observing, Certification 
requirements.


0
For the reasons set forth in the preamble, NOAA amends 15 CFR chapter 
IX by adding subchapter G, consisting of part 997, to read as follows:

Subchapter G--Requirements for Certification by NOAA of Non-Federal 
Assets Into the Integrated Coastal and Ocean Observation System

PART 997--REGIONAL INFORMATION COORDINATION ENTITIES

Subpart A--General
Sec.
997.1 Definitions.
997.2 Acceptance of procedures by a RICE.
Subpart B--Certification and Decertification Process for a Regional 
Information Coordination Entity (RICE)
997.10 Eligibility.
997.11 Application process.
997.12 Review by NOAA.
997.13 Certification process.
997.14 Certification duration and renewal.
997.15 Audit and decertification.
997.16 Final action.
Subpart C--Certification and Application Requirements for a RICE
997.20 General.
997.21 Organizational structure.
997.22 Membership policy.
997.23 Strategic operational plan.
997.24 Gaps identification.
997.25 Financial oversight.
997.26 Civil liability.

    Authority:  33 U.S.C. 3603 et seq.

Subpart A--General


Sec.  997.1  Definitions.

    Certification. For purposes of these regulations, the term 
``certification'' means the granting by NOAA of status to a non-federal 
entity as a participating RICE of the System authorized by section 
12304 of the ICOOS Act. An applicant will not be considered to be 
participating in the System unless 1) it agrees to meet the 
certification standards issued by the Administrator issued herein, and 
2) the Administrator declares the applicant to be part of the System as 
a certified RICE.
    Equipment. For purposes of these regulations, the term 
``equipment'' is defined as a tangible asset that is functionally 
complete for its intended purpose and has a capital cost of over 
$5,000. Both individual sensors and collections of sensors on a 
platform are considered equipment and are subject to the $5,000 minimum 
cost.
    Non[hyphen]Federal assets. The term ``non-Federal assets'' means 
all relevant coastal and ocean observation technologies, related basic 
and applied technology research and development, and public education 
and outreach programs that are integrated into the System and are 
managed through State, regional organizations, universities, 
nongovernmental organizations, or the private sector.

[[Page 32461]]

    Owned and/or operated by the RICE. The term ``owned and/or operated 
by the RICE'' means non-Federal Assets that are either owned and/or 
operated directly by the RICE, or supported financially in part or in 
full by the RICE.
    Regional Information Coordination Entity. The term ``regional 
information coordination entity'' means an organizational body that is 
certified or established by contract or memorandum by the lead Federal 
agency (NOAA) designated in the ICOOS Act, and that coordinates State, 
Federal, local, and private interests at a regional level with the 
responsibility of engaging the private and public sectors in designing, 
operating, and improving regional coastal and ocean observing systems 
in order to ensure the provision of data and information that satisfy 
the needs of user groups from the respective regions. The term 
``regional information coordination entity'' includes regional 
associations described in the System Plan.
    Employee of a Regional Information Coordination Entity. The term 
``Employee of a Regional Information Coordination Entity'' means an 
individual identified in Sec.  997.23(d)(3) or (f)(1) of these 
Regulations and satisfies the requirements listed in Sec.  997.26(c).
    System. The term ``System'' means the National Integrated Coastal 
and Ocean Observation System established in accordance with section 
12304 of the ICOOS Act (33 U.S.C. 3603).
    System Plan. The term ``System Plan'' means the plan contained in 
the document entitled ``Ocean.US Publication No. 9, The First 
Integrated Ocean Observing System (IOOS) Development Plan,'' as updated 
by the Council under these regulations.


Sec.  997.2  Acceptance of procedures by a RICE.

    By its voluntary entrance or participation in the System, the RICE 
acknowledges and accepts the procedures and requirements established by 
these regulations.

Subpart B--Certification and Decertification Process for a Regional 
Information Coordination Entity (RICE)


Sec.  997.10  Eligibility.

    Any non-Federal entity may submit an application for certification 
as a RICE as defined in the ICOOS Act and these Regulations.


Sec.  997.11  Application process.

    (a) The applicant for certification shall submit an application 
package containing the information and documentation outlined in 
subpart C of this part. The submission package shall include the 
application form, available online at http://www.ioos.noaa.gov/certification.
    (b) Submission shall be made to NOAA at the address below, or to 
such other address as may be indicated in the future: Director U.S. 
IOOS Program Office, NOAA, 1100 Wayne Ave, Suite 1225, Silver Spring, 
MD 20910. Submissions may also be made online at http://www.ioos.noaa.gov/certification.


Sec.  997.12  Review by NOAA.

    (a) After receiving an application package, NOAA shall have up to 
90 calendar days to review the application package and decide whether 
to certify the applicant.
    (b) Before the 90 calendar days have elapsed, NOAA may request 
additional information, in which case NOAA shall have up to 30 
additional calendar days after that additional information has been 
received by NOAA, above and beyond the original 90 calendar days, to 
review the application package and decide whether to certify the 
applicant.
    (c) NOAA's decision whether to certify the applicant shall be based 
on whether the RICE demonstrates that it satisfies the current IOOC 
certification criteria and these regulations.


Sec.  997.13  Certification process.

    (a) NOAA's decision whether to certify the applicant, along with 
the reason for its decision, shall be delivered to the applicant via 
letter delivered by first class mail and by electronic means.
    (b) Applicants receiving a certification determination in the 
affirmative shall be designated as ``certified'' RICEs by NOAA. NOAA 
shall memorialize this status via a memorandum of agreement with the 
applicant. Certification shall mean that a RICE is incorporated into 
the System.
    (c) A certified RICE shall provide NOAA with written notification 
of the RICE's intention to substantively change its organizational 
structure or Strategic Operational Plan, and shall request approval 
from NOAA for the change. After receiving the written notification, 
NOAA shall have up to 30 calendar days to review the requested change 
and decide whether to approve the requested change. NOAA's decision, 
along with the reason for its decision, shall be included in a written 
notification to the RICE.


Sec.  997.14  Certification duration and renewal.

    (a) Certification of a RICE shall be for a term of 5 years, unless 
otherwise specified by the NOAA Administrator.
    (b) Certification may be renewed, at the request of the RICE, for a 
period of five years. A RICE seeking to renew its certification shall 
provide NOAA with a written request to renew at least 120 calendar days 
before the expiration of the existing certification. The request shall 
include the application form, available online at http://www.ioos.noaa.gov/certification, and all information providing evidence 
that the applicant satisfies the IOOC certification criteria and NOAA 
regulations promulgated to certify and integrate non-Federal assets 
into the System.
    (c) After receiving a written request for renewal of certification, 
NOAA shall have up to 90 calendar days to review the request and decide 
whether to renew the certification.
    (d) Before the 90 calendar days have elapsed, NOAA may request 
additional information, in which case NOAA shall have up to 30 
additional calendar days after that additional information has been 
received by NOAA, above and beyond the original 90 calendar days, to 
review the request and decide whether to renew the certification.
    (e) NOAA's decision whether to renew the certification shall be 
based on whether the RICE continues to demonstrate that it satisfies 
the current IOOC certification criteria and these regulations. NOAA's 
decision, along with the reason for its decision, shall be included in 
a written notification to the RICE.


Sec.  997.15  Audit and decertification.

    (a) NOAA may audit a RICE that it has certified to ensure 
compliance with the IOOC certification criteria and these regulations. 
NOAA will notify the RICE of its intent to conduct an audit and will 
coordinate with the RICE on the audit schedule and process.
    (b) NOAA may decertify a RICE. In general, a RICE may be 
decertified when:
    (1) The results of an audit indicate that the RICE no longer 
satisfies the requirements under which it was certified; or
    (2) Other relevant reasons for decertification become apparent.
    (c) NOAA's intent to decertify a RICE, along with the 
identification of a specific deficiency(ies) and a recommended 
corrective action(s), shall be included in a written notification to 
the RICE. After receiving NOAA's written notification, a RICE shall 
have up to 45 calendar days to request in writing that NOAA reconsider 
its intent to decertify the RICE. The RICE's request for 
reconsideration shall contain sufficient information for NOAA to 
determine whether to grant the request for reconsideration. 
Alternatively, the RICE may correct the deficiency(ies)

[[Page 32462]]

identified by NOAA within 45 calendar days, notify NOAA in writing of 
the corrective action(s) taken, and provide sufficient evidence for 
NOAA to determine the correctness and effectiveness of the corrective 
action(s) taken.
    (d) If a RICE submits to NOAA a written request for reconsideration 
or a written assertion that the identified deficiency(ies) has been 
corrected, NOAA shall have up to 60 calendar days after receipt of the 
request or assertion, to review the request for reconsideration or the 
assertion of corrective action. NOAA's decision, along with the reason 
for its decision, shall be delivered to the applicant via letter 
delivered by first class mail and by electronic means.
    (e) Upon decertification, a RICE shall no longer be incorporated 
into the System.
    (f) A RICE may act voluntarily to terminate its certification at 
any time by notifying NOAA in writing of its desire to do so. Upon 
receipt of the notification by NOAA, the RICE will no longer be 
incorporated into the System.


Sec.  997.16  Final action.

    NOAA's decision, whether to certify, renew or decertify a RICE 
shall be considered final agency action.

Subpart C--Certification and Application Requirements for a RICE


Sec.  997.20  General.

    (a) For the purposes of these certification regulations, when the 
verb ``describe'' is used it indicates that the RICE shall give an 
account in text that responds to the requirement. This text shall 
contain sufficient information to demonstrate how the RICE satisfies 
the certification requirement. The RICE may include a link(s) to 
additional information. When the verb ``document'' is used, it 
indicates that the RICE shall furnish a document(s) that responds to 
the requirement. A text statement accompanying the document(s) will 
normally be necessary to provide context for the document(s) and to 
demonstrate how the RICE satisfies the certification requirement. The 
RICE may include a link to a document in the accompanying text 
statement.
    (b) Documentation that addresses the certification requirements may 
include references to existing RICE documents. All documents and 
materials may be submitted directly to the U.S. IOOS Program Office or 
made accessible for public viewing on the RICE's Web site.
    (c) To become certified, a RICE must submit an application that 
addresses each of the requirements listed in this subpart.


Sec.  997.21  Organizational structure.

    (a) To become certified, a RICE must demonstrate an organizational 
structure capable of gathering required System observation data, 
supporting and integrating all aspects of coastal and ocean observing 
and information programs within a region and that reflects the needs of 
State and local governments, commercial interests, and other users and 
beneficiaries of the System and other requirements specified in this 
subchapter and the System Plan.
    (b) The application shall:
    (1) Describe the RICE's organizational structure (e.g., 26 U.S.C. 
501(c)(3) tax-exempt organization, establishment via MOU or MOA).
    (2) Document the RICE's ability to satisfy applicable legal 
criteria for accepting and disbursing funds, and entering into 
agreements. Sufficient documentation may be provided in the form of: 
Evidence of a current grant, cooperative agreement, or contract in good 
standing with the Federal government; or evidence of fiscal agreements, 
standard operating procedures for financial activities, and proof of an 
audit process.
    (3) Document the RICE's measures for addressing issues of 
accountability and liability. For this criterion, accountability and 
liability refer to the RICE's governance and management activities. 
Sufficient documentation may be provided in the form of a conflict of 
interest policy for the Governing Board or governing body, which 
clearly states that a member of the governing board will declare any 
conflict of interest he or she may have and will recuse him or herself 
from associated funding decisions that may result in the Board member 
or a direct family member benefiting financially, and a policy 
statement in the RICE's by-laws that addresses liability issues.
    (4) Describe the process the RICE uses to set priorities for 
distributing funds (e.g., requirement for Governing Board or governing 
body approval when responding to funding opportunities or adjusting to 
funding level changes in existing agreements); and
    (5) Document the by-laws, signed articles of agreement, or any 
binding agreements that demonstrate how the RICE establishes and 
maintains a Governing Board or governing body. The documentation shall 
demonstrate:
    (i) How the composition of the Governing Board or governing body is 
selected and how it is representative of regional ocean observing 
interests. NOAA defines ``representative'' in this specific context to 
include geographic, sector, expertise, and stakeholder considerations.
    (ii) How and with what frequency the RICE solicits and receives 
advice on RICE participant diversity, stakeholder coordination, and 
engagement strategies, to ensure the provision of data and information 
that satisfy the needs of user groups.
    (iii) How the RICE collects and assesses user feedback to gauge the 
effectiveness of the regional system and subsystems in satisfying user 
needs, and how the RICE responds to this user feedback in setting its 
priorities. Sufficient documentation may be provided in the form of a 
description of the method the RICE uses in its annual planning process 
to assess priorities among the identified user needs in the region and 
to respond to those user needs, and
    (iv) Steps the RICE takes to ensure decisions on priorities and 
overall regional system design are transparent and available. At a 
minimum, RICE priorities and regional system design decisions shall be 
made accessible for public viewing on the RICE's Web site.


Sec.  997.22  Membership policy.

    The application shall describe:
    (a) The process by which individuals or organizations may formally 
participate in the governance activities of the RICE;
    (b) The rights and responsibilities of this participation;
    (c) The process by which the RICE strives for organizational 
diversity through intra-regional geographic representation, and 
diversity of activities and interests from both public and private 
sectors; and
    (d) How the RICE allows for participation from adjacent regions or 
nations.


Sec.  997.23  Strategic operational plan.

    (a)(1) To become certified, a RICE must:
    (i) Develop and operate under a strategic operational plan that 
will ensure the efficient and effective administration of programs and 
assets to support daily data observations for integration into the 
System, pursuant to the standards approved by the Council; and
    (ii) Work cooperatively with governmental and 
non[hyphen]governmental entities to identify and provide information 
products of the System for multiple users within the service area of 
the regional information coordination entities.
    (2) The application must contain a Strategic Operational Plan, 
which is a

[[Page 32463]]

high-level document that outlines how a RICE manages and operates an 
integrated regional observing system. This Plan should evolve as a RICE 
matures, new technologies become available, regional priorities change, 
and new users and stakeholders are identified. The Plan may be 
responsive to changing funding levels, and shall contain sections that 
each address the requirements in paragraphs (b) through (g) of this 
section, referencing other plans directly when applicable.
    (b) Background and Context. The Strategic Operational Plan shall 
contain a Background and Context section that describes:
    (1) The role of the RICE in furthering the development of the 
regional component of the System;
    (2) The process by which the RICE updates the Strategic Operational 
Plan at least once every five years and how the RICE seeks inputs from 
the broader user community; and
    (3) The RICE's primary partners and any contributing observing 
systems. For the purposes of Sec.  997.23, NOAA defines a primary 
partner as any organization or individual that contributes significant 
staff time, funding or other resources to project activities. This is 
not an exhaustive list of all RICE partners but the primary partners 
the RICE is working with on a given project.
    (c) Goals and Objectives. The Strategic Operational Plan shall 
contain a Goals and Objective section that describe:
    (1) How the RICE addresses marine operations; coastal hazards; 
ecosystems, fisheries and water quality; and climate variability and 
change; and
    (2) The major objectives that guide the RICE's priorities for data 
collection and management, development of products and services, 
research and development, and education and outreach.
    (d) Operational Plan for the Observing System. The Strategic 
Operational Plan shall include or reference an Operational Plan for the 
Observing System that:
    (1) Describes the desired outcomes of the observing system;
    (2) Describes the elements of the operational integrated observing 
system that will deliver those outcomes;
    (3) Documents to NOAA's satisfaction that the individual(s) 
responsible for RICE operations has the necessary qualifications and 
possesses relevant professional education and work experience to 
deliver observations successfully. At a minimum the Strategic 
Operational Plan shall:
    (i) Identify the individual(s) responsible for overall RICE 
management;
    (ii) Identify, as applicable, the individual(s) responsible for 
observations system management across the region;
    (iii) Provide the curriculum vitae for each identified individual; 
and
    (iv) Identify the procedures used to evaluate the capability of the 
individual(s) identified in Sec.  997.23(d)(3) to conduct the assigned 
duties responsibly; and
    (4) Describes how the RICE manages ongoing regional system 
operations and maintenance. At a minimum the Strategic Operational Plan 
shall:
    (i) Describe the RICE's standard operating procedures for 
calibrating, validating, operating, and maintaining equipment owned 
and/or operated by the RICE regularly and in accordance with 
manufacturer guidance or industry best practice. Equipment is defined 
in Sec.  997.1; and
    (ii) Describe the RICE's standard operating procedures for 
maintaining equipment inventories, shipping logs and instrument history 
logs for equipment owned and/or operated by the RICE.
    (e) Development of a Strategy to Sustain and Enhance the System. 
The Strategic Operational Plan shall describe its strategy for 
balancing changes in regional priorities with the need to maintain 
established data sets, the primary value of which may be in their long-
term records. At a minimum the description shall:
    (1) Identify the guiding principles that inform the strategy;
    (2) Reference and show connections to a long-term (five-to-ten-
year) regional Build-out Plan for the full implementation of the 
regional observing system based on the RICE's priorities and identified 
user needs; and
    (3) Relate the annual planning process the RICE uses to review its 
priorities in light of funding levels and its plans for system 
enhancement as outlined in the regional Build-out Plan.
    (f) Data Management and Communications (DMAC) Plan. The Strategic 
Operational Plan shall include or reference a DMAC Plan that:
    (1) Documents to NOAA's satisfaction that the individual(s) 
responsible for management of data operations for the RICE has the 
necessary technical skills, and possesses relevant professional 
education and work experience to support DMAC capabilities and 
functionality for the System. At a minimum the DMAC Plan shall:
    (i) Identify the individual(s) responsible for the coordination and 
management of observation data across the region;
    (ii) Provide the curriculum vitae for the identified individual(s); 
and
    (iii) Identify the procedures used to evaluate the capability of 
the individual(s) identified in Sec.  997.23(f)(1) to conduct the 
assigned duties responsibly.
    (2) Describes how data are ingested, managed and distributed, 
including a description of the flow of data through the RICE data 
assembly center from the source to the public dissemination/access 
mechanism. The description shall include any transformations or 
modifications of data along the data flow pathway including, but not 
limited to, format translations or aggregations of component data 
streams into an integrated product.
    (3) Describes the data quality control procedures that have been 
applied to data, not obtained through a federal data source, that are 
distributed by the RICE. All data shall be quality controlled and 
QARTOD procedures shall be employed for data with QARTOD manuals. For 
each data stream, describe the quality control procedure applied to the 
data, by the RICE or other named entity, between the data's collection 
and publication by the RICE. The description will also include a 
reference to the procedure used.
    (4) Adheres to the NOAA Data Sharing Procedural Directive.\1\ The 
System is an operational system; therefore the RICE should strive to 
provide as much data as possible, in real-time or near real-time, to 
support the operation of the System. When data are collected in part or 
in whole with funds distributed to a RICE through the U.S. IOOS Program 
Office, the RICE should strive to make the data available as soon as 
logistically feasible for each data stream. When data are not collected 
with funds distributed to a RICE through the U.S. IOOS Program Office, 
the data may be made available in accordance with any agreement made 
with the data provider.
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    \1\ NOAA Data Sharing Policy for Grants and Cooperative 
Agreements Procedural Directive, Version 2.0 https://www.nosc.noaa.gov/EDMC/documents/EDMC_PD-DSPNG_final_v2.pdf.
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    (5) Describes how the RICE will implement data management protocols 
promulgated by the IOOC and the U.S. IOOS Program Office in a 
reasonable and timely manner as defined for each protocol; and
    (6) Documents the RICE's data archiving process or describes how 
the RICE intends to archive data at a national archive center (e.g., 
NODC, NGDC, NCDC) in a manner that follows guidelines outlined by that 
center. Documentation shall be in the form of

[[Page 32464]]

a Submission Agreement, Submission Information Form (SIF) or other, 
similar data producer-archive agreement.
    (g) Budget Plan. The Strategic Operational Plan shall include or 
reference a Budget Plan that:
    (1) Identifies who supports the RICE financially;
    (2) Identifies how RICE priorities guide funding decisions; and
    (3) Assesses funding constraints and the associated risks to the 
observing System that the RICE must address for the future.


Sec.  997.24  Gaps identification.

    (a) To become certified, a RICE must identify gaps in observation 
coverage needs for capital improvements of Federal assets and non-
Federal assets of the System, or other recommendations to assist in the 
development of annual and long-terms plans and transmit such 
information to the Interagency Ocean Observing Committee via the 
Program Office.
    (b) The application shall:
    (1) Document that the RICE's asset inventory contains up-to-date 
information. This could be demonstrated by a database or portal 
accessible for public viewing and capable of producing a regional 
summary of observing capacity;
    (2) Provide a regional Build-out Plan that identifies the regional 
priorities for products and services, based on its understanding of 
regional needs, and a description of the integrated system 
(observations, modeling, data management, product development, 
outreach, and R&D). The RICE shall review and update the Build-out Plan 
at least once every five years; and
    (3) Document the priority regional gaps in observation coverage 
needs, as determined by an analysis of the RICE asset inventory and 
Build-out Plan. The RICE shall review and update the analysis of 
priority regional gaps in observation coverage needs at least once 
every five years.


Sec.  997.25  Financial oversight.

    (a) To become certified, a RICE must comply with all financial 
oversight requirements established by the Administrator, including 
requirement relating to audits.
    (b) The application shall document compliance with the terms and 
conditions set forth in 2 CFR Part 215--Uniform Administrative 
Requirements for Grants and Agreements with Institutions of Higher 
Education, Hospitals, and Other Non-profit Organizations, Subpart C--
Post Award Requirements. Subpart C prescribes standards for financial 
management systems, among others. (Compliance with this criterion can 
be demonstrated by referencing any existing grant, cooperative 
agreement, or contract the RICE has with NOAA.)
    (c) The RICE shall document annually the RICE's operating and 
maintenance costs for all observing platforms and sensors, etc., owned 
and/or operated by the RICE. This information shall be made available 
to NOAA upon request.


Sec.  997.26  Civil liability.

    (a) For purposes of determining liability arising from the 
dissemination and use of observation data gathered pursuant to the 
ICOOS Act and these regulations, any non-Federal asset or regional 
information coordination entity incorporated into the System by 
contract, lease, grant, or cooperative agreement that is participating 
in the System shall be considered to be part of the National Oceanic 
and Atmospheric Administration. Any employee of such a non-Federal 
asset or regional information coordination entity, while operating 
within the scope of his or her employment in carrying out the purposes 
of this subtitle, with respect to tort liability, is deemed to be an 
employee of the Federal Government.
    (b) The ICOOS Act's grant of civil liability protection (and thus 
the RICE's limited status as part of NOAA) applies only to a RICE that:
    (1) Is participating in the System, meaning the RICE has been 
certified by NOAA in accordance with the ICOOS Act and these 
regulations; and
    (2) Has been integrated into the System by memorandum of agreement 
with NOAA.
    (c) An ``employee'' of a regional information coordination entity 
is an individual who satisfies all of the following requirements:
    (1) The individual is employed or contracted by a certified RICE 
that has been integrated into the System by memorandum of agreement 
with NOAA, and that is participating in the System, as defined in Sec.  
997.26(b);
    (2) The individual is identified by the RICE, as required in Sec.  
997.23(d)(3) and (f)(1)(i), as one of the individuals responsible for 
the collection, management, or dissemination of ocean, coastal, and 
Great Lakes observation data; and
    (3) The individual is responsive to federal government control.
    (d) The protection afforded to employees of a RICE with regard to 
liability applies only to specific individuals employed or contracted 
by a RICE who meet the requirements of Sec.  997.26(c) and who are 
responsible for the collection, management, or dissemination of ocean, 
coastal, and Great Lakes observation data. The RICE must identify to 
NOAA's satisfaction: The individual(s) responsible for overall system 
management, as applicable, the individual(s) responsible for 
observations system management across the region, and the individual(s) 
responsible for management of data operations across the region. In 
accepting certification, the RICE will concede to NOAA the power to 
ensure these individuals comply with the requirements of this rule in 
their daily operations and that they are responsive to NOAA through the 
agreement the RICE has with NOAA.

[FR Doc. 2014-13034 Filed 6-4-14; 8:45 am]
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