61172 Federal Register / Vol. 69, No. 199 / Friday, October 15, 2004 / Proposed Rules 

users that is intended to meet this 

requirement. 

(3) Acquisition of data 

Value Added Distributor asserts that all 

procedures described in this requirement for 

the acquisition of NOAA ENC data for 

distribution are being followed. 

(4) Quality Management System 

Value Added Distributor shall provide a 

copy of the ISO 9001–2000 certification or 

certification of compliance with an 

equivalent program of quality management 

that covers the processes described in this 

section of the requirements. 

(5) Conversion of NOAA ENC files to other 

formats 

Value Added Distributor asserts that all 

NOAA ENC content and accuracy are 

preserved during the conversion process as 

described in this section of the requirements. 

(6) Conversion of NOAA ENC files to other 

formats/Software certification 

Value Added Distributor shall provide a 

copy of the type approval certificate for the 

software used to convert the NOAA ENC

files to the Value Added Distributor’s format. 

(7) Conversion of NOAA ENC files to other 

formats/Error reporting Value Added 

Distributor asserts that they shall log and 

report any errors in the NOAA ENC data 

detected during the conversion process. 

Value Added Distributor shall provide an 

example of the report format that they will 

use. 

(8) Conversion of NOAA ENC files to other 

formats/Format check 

Value Added Distributor asserts that all 

data shall be checked for conformance with 

Value Added Distributor’s own format 

specifications and shall test load the 

converted data as described in this section of 

the requirements. 

(9) Distribution of data/Frequency of 

distribution 

Value Added Distributor asserts that any 

updates will be transmitted to their users 

within the time constraints described by this 

requirement. 

(10) Distribution of data/Distribution report 

Value Added Distributor shall provide an 

example of the distribution report described 

by this requirement. 

(11) Distribution of data/Additional data 

Value Added Distributor shall indicate if 

additional data is to be distributed with the 

NOAA ENC data. If so, Value Added 

Distributor shall provide examples of how 

the data users will be informed as to the 

official and unofficial contents of the data as 

described in this requirement. 

(12) Distribution of data/Identification of 

contents 

Value Added Distributor shall provide 

examples of how the contents of the NOAA 

ENC files will be identified to the users. 

(13) Format validation software testing 

The validation software used by Value 

Added Distributor shall be tested according 

to this requirement and the results stated in 

this section of the request for certification. 

(14) Use of NOAA emblem 

Value Added Distributor acknowledges 

that a separate request for the use of the 

NOAA emblem must be submitted according 

to the procedure described in § 995.28. 

(15) Limitation on Endorsements 

Value Added Distributor acknowledges 

that NOAA does not automatically, directly, 

or indirectly endorse any product or service 

provided, or to be provided, by Value Added 

Distributor, its successors, assignees, or 

licensees. Value Added Distributor shall not 

in any way imply that this certification is an 

endorsement of any such product or service 

without separate, written permission. 

(16) Correspondence and Applications/

Requests for Certification 

Value Added Distributor acknowledges 

and agrees to all procedures and 

requirements described pertaining to the 

certification process. 

(17) Correspondence and Applications/Point 

of contact 

Value Added Distributor agrees to 

immediately notify the Government of any 

changes to point of contact information. 

(18) Auditing 

Value Added Distributor acknowledges 

that NOAA reserves the right to audit Value 

Added Distributor to ensure that these 

requirements are being met. 

(19) Termination of certification 

Value Added Distributor acknowledges the 

conditions leading to and procedures for the 

termination of certification as described in 

the requirements. 

(20) Term of certification 

Value Added Distributor acknowledges 

that the duration of certification is five years 

from the date of issuance. 

(21) Liability 

By signing this request for certification, 

Value Added Distributor pledges to 

indemnify and hold harmless the U.S. 

Government for any loss, claim, damage, or 

liability of any kind, the extent caused by the 

negligence of Value Added Distributor or its 

employees, arising out of the use by the 

Value Added Distributor, or any party acting 

on its behalf or under its authorization, of 

NOAA ENC data. 

Signature of this request constitutes an 

acknowledgement by Value Added 

Distributor of ALL applicable terms and 

conditions described in the certification 

requirements.

Dated: October 4, 2004. 

Richard W. Spinrad, 

Assistant Administrator for Ocean Services 

and Coastal Zone Management, National 

Oceanic and Atmospheric Administration.

[FR Doc. 04–23167 Filed 10–14–04; 8:45 am] 

BILLING CODE 3510–JE–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration 

15 CFR Part 996 

[Docket No: 040908256425601] 

RIN 0648–AS50 

Quality Assurance and Certification 

Program for NOAA Hydrographic 

Products

AGENCY: National Ocean Service (NOS), 

National Oceanic and Atmospheric 

Administration (NOAA), Department of 

Commerce (DOC).

ACTION: Proposed rule; request for 

comments. 

SUMMARY: The National Oceanic and 

Atmospheric Administration (NOAA) 

has been mandated to develop and 

implement a quality assurance program 

that is equally available to all 

applicants, under which the 

Administrator may certify hydrographic 

products that satisfy standards 

promulgated by the Administrator. 

‘‘Hydrographic products’’ are any 

publicly or commercially available 

products produced by a non-Federal 

entity that include or display 

hydrographic data. The Administrator 

proposes to fulfill this mandate by 

establishing procedures by which 

hydrographic products are proposed for 

certification; by which standards and 

compliance tests are developed, 

adopted, and applied for those products; 

and by which certification may be 

awarded or denied. These procedures 

would be the mandated Quality 

Assurance Program, and the 

implementation of the program would 

be the execution of those procedures for 

specific hydrographic products.

DATES: Comments must be received by 

November 15, 2004.

ADDRESSES: Comments in writing 

should be submitted to Director, Office 

of Coast Survey, National Ocean 

Service, NOAA (N/CS), 1315 East West 

Highway, Silver Spring, MD 20910. 

Written comments may be faxed to (301) 

713–4019. Comments by e-mail should 

be submitted to 

HydrographicProducts@noaa.gov.

FOR FURTHER INFORMATION CONTACT: Mr. 

David B. Enabnit, Office of Coast 

Survey, NOAA (N/CSx2), 1315 EastWest Highway, Silver Spring, MD, 

20910, (voice phone) 301–713–2770 

x132, (fax phone) 301–713–4019, (email) Dave.Enabnit@noaa.gov.

SUPPLEMENTARY INFORMATION: 

Federal Register / Vol. 69, No. 199 / Friday, October 15, 2004 / Proposed Rules 61173

Background 

Definitions 

Hydrographic products—any publicly 

or commercially available product 

produced by a non-Federal entity that 

includes or displays hydrographic data. 

Hydrographic data—information 

acquired through hydrographic or 

bathymetric surveying, 

photogrammetry, geodetic, geospatial, or 

geomagnetic measurements, tide and 

current observations, or other methods, 

that is used in providing hydrographic 

services. 

Hydrographic services—hydrographic 

services means:

—The management, maintenance, 

interpretation, certification, and 

dissemination of bathymetric, 

hydrographic, geodetic, geospatial, 

geomagnetic, and tide and current 

information, including the production 

of nautical charts, nautical 

information databases, and other 

products derived from hydrographic 

data; 

—The development of nautical 

information systems; and 

—Related activities. 

The Act 

The Hydrographic Services 

Improvement Act of 1998, as amended 

by the Hydrographic Services 

Improvement Act Amendments of 2002 

(codified as 33 U.S.C. 892b), directs: 

1. IN GENERAL—The 

Administrator—

A. By not later than 2 years after the 

date of enactment of the Hydrographic 

Services Improvement Act Amendments 

of 2002, shall, subject to the availability 

of appropriations, develop and 

implement a quality assurance program 

that is equally available to all 

applicants, under which the 

Administrator may certify hydrographic 

products that satisfy the standards 

promulgated by the Administrator 

under section 303(a)(3) of the Act; 

B. May authorize the use of the 

emblem or any trademark of the 

Administration on a hydrographic 

product certified under subparagraph 

(A); and 

C. May charge a fee for such 

certification and use. 

Section 303(a)(3) referenced above 

states that the Administrator shall 

‘‘promulgate standards for hydrographic 

services provided by the 

administration.’’

Statement of Policy 

NOAA will act in accordance with the 

following policies in fulfilling its 

Quality Assurance Program 

responsibilities under the Hydrographic 

Services Improvement Act. 

1. NOAA interprets the Act as 

intending to stimulate the development 

of hydrographic products by the private 

sector. The intent of NOAA’s 

participation in this private sector 

activity is to provide the public a 

measure of confidence in the content, 

quality, and adherence to published 

standards of the resulting hydrographic 

products. NOAA interprets the Act in a 

broad sense. Therefore, ‘‘standards’’ and 

‘‘quality assurance program’’ are 

considered to be generic terms that 

apply to any means of satisfying the 

intent of the Act and the intent of 

NOAA’s participation, and that are 

within NOAA’s authorities. 

2. Standards, and quality assurance 

tests and procedures, will preferably be 

written in collaboration with those 

affected, not just written and 

promulgated by NOAA. In some 

instances, NOAA may adopt an existing 

standard or quality assurance program, 

rather than originate one. NOAA may 

develop standards and quality assurance 

tests on its own initiative should, for 

example, it be deemed beneficial for 

those standards and tests to be 

established before the appearance of a 

particular hydrographic product. This 

approach may be used to stimulate the 

production of a product that NOAA 

anticipates would be beneficial. 

3. The level to which standards are 

developed, and to which quality 

assurance is performed, may vary for 

different hydrographic products. For 

example, certification for manufacturers 

making exact copies of NOAA products 

may be implemented in a substantially 

differently manner from the certification 

of a complex cartographic product. 

NOAA considers all such ‘‘standards’’

and ‘‘certifications’’ as meeting the 

intent of the Act. 

4. NOAA will work, to the extent 

practicable, through existing, 

recognized, standards and certification 

bodies. This will permit the use of 

proven methods of developing, 

documenting, and implementing 

standards and certification. It will 

leverage NOAA’s resources with those 

of such bodies. It will provide a more 

widely accepted result than had NOAA 

promulgated a standard solely under its 

own name. 

5. NOAA will establish the required 

Quality Assurance Program for 

hydrographic products. The Quality 

Assurance Program will be general 

procedures that apply to all 

hydrographic products, and specific 

tests and procedures that apply to 

specific hydrographic products. The 

specific quality assurance tests and 

procedures for a particular hydrographic 

product will be based on the standards 

identified by NOAA or written 

collaboratively with the affected parties. 

6. Certification of a specific 

hydrographic product under the Quality 

Assurance Program will be at the option 

of NOAA. However, certification will be 

the goal in cases where NOAA decides 

to write or adopt standards. Any nonFederal entity will be permitted to 

submit for certification hydrographic 

products that it asserts are compliant 

with the NOAA-adopted standards. 

7. Certification of products under the 

Program will mean that the 

hydrographic product has been found to 

be compliant with the NOAA-adopted 

standards for that particular 

hydrographic product. Certification 

conveys no express or implied warranty 

as to the merchantability or fitness for 

a particular purpose; conveys no 

express or implied liability on the part 

of the Government of the United States 

for the hydrographic products; and 

conveys no automatic, direct or indirect 

NOAA endorsement of any product or 

service. NOAA may audit hydrographic 

products it has certified, and may 

decertify hydrographic products based 

on its findings. 

8. NOAA does not intend to write 

standards and perform quality assurance 

for every hydrographic product 

submitted by a non-Federal entity. 

NOAA will select those deemed 

appropriate for standards and 

certification by taking into account:

—The magnitude of the public benefit 

and enhancement of public safety that 

would be achieved compared to the 

commitment of resources that would 

be required; 

—The breadth of support for standards 

and certification among all the 

affected communities; 

—The practicality of writing and 

enforcing an effective standard and 

compliance tests; 

—The availability of suitable, similar 

products that may already meet the 

needs of the public; 

—NOAA’s expertise related to that 

needed to write an appropriate 

standard; 

—Availability of resources; and 

—Other relevant criteria as they become 

apparent.

In general, NOAA does not intend to 

write standards and certify products 

that would be used to meet the nautical 

chart and publications carriage 

requirements mandated in the Code of 

Federal Regulations and elsewhere. The 

federal government already provides 

official products for this purpose, and 

there are valid safety reasons for 

61174 Federal Register / Vol. 69, No. 199 / Friday, October 15, 2004 / Proposed Rules 

maintaining a single complying product 

for regulated carriage.

9. Use of the NOAA emblem on 

certified hydrographic products will 

require separate written permission. Use 

of the NOAA emblem must satisfy an 

interest of the Agency, and must not 

result in embarrassment to the Agency. 

If the NOAA emblem is used on 

products that include other data or 

products, clear indication will be 

required as to what is NOAA certified. 

The inclusion of other data or products 

will not constitute any endorsement of, 

or favoritism toward, the other data or 

products by NOAA. 

10. NOAA may charge for its 

standards and certification activities 

such sums as may be permitted or 

required under this Act, or under other 

statutory authorities. 

11. NOAA will operate the Quality 

Assurance Program in an open and 

public manner. All standards, tests, and 

procedures will be publicly available. 

The public will be given ample public 

notification of activities under the 

Quality Assurance Program, and will be 

given ample opportunity to comment 

and have their comments heard. This 

opportunity to participate in the Quality 

Assurance Program and the opportunity 

to submit hydrographic products for 

certification under that Program will be 

equally available to all. 

12. In all matters, NOAA will proceed 

in a manner that maximizes public 

safety. 

Discussion of Selected Sections of the 

Policy 

Paragraph 1 

NOAA interprets the Act as an 

attempt to increase the richness of the 

suite of hydrographic products available 

to the public, and to ensure the safety 

of those products. In addition, NOAA 

interprets the Act to include ‘‘services’’

as meeting the definition of 

‘‘hydrographic products,’’ and may 

choose to write standards, quality 

assurance tests and procedures, and to 

certify appropriate services. Nautical 

chart updating services, or an electronic 

navigational chart distribution service, 

are examples of services that NOAA 

may consider a ‘‘hydrographic product’’

under the Act. 

Other tools within NOAA’s authority 

may be used to meet the purposes of the 

Act. Depending on the complexity of the 

hydrographic product, and the amount 

of risk the public would be exposed to, 

NOAA reserves the right to select any 

authorized means of establishing new 

products and providing a measure of 

confidence in the content, quality, and 

adherence to standards for those 

products. Thus, for purposes of 

accountability under the Act, NOAA is 

interpreting ‘‘standards,’’ ‘‘quality 

assurance,’’ and ‘‘certification’’ as 

generic terms describing an outcome 

rather than as a specific formalism or 

document. For example, some nonFederal entities may intend to 

reproduce exactly NOAA products such 

as the Tide Tables. In this case, a 

‘‘standard’’ may be a simple agreement, 

in which the manufacturer agrees to 

certain standards of copy quality. 

Further, because the complexity is low, 

self-certification might be used as the 

means of compliance testing. Other such 

authorities available to NOAA that may 

be used include: business licenses, 

Agent Agreements, no-cost contracts, 

self-certification, adoption of industry 

standards, and the use of existing 

certification organizations. 

Paragraph 2 

Participation by the affected 

communities in writing standards and 

compliance tests provides an important 

guarantee that there is broad need for 

standards and certification, and that the 

resulting standard and certification meet 

the needs of the affected communities. 

Relevant communities might include: 

manufacturers, users, regulators, 

resellers, developers of products that 

use certified hydrographic products 

such as datasets, and manufacturers of 

competing or substitute products. 

Participation in the drafting of 

standards and quality assurance tests 

and procedures must be substantive and 

continuing by the designated members 

of the affected communities. The 

responsibility will lie with the nonFederal entity submitting a 

hydrographic product for certification to 

propose a broadly based group of 

acknowledged representatives of 

affected groups, and to secure their 

participation in the writing of standards 

and compliance tests. 

Paragraph 6 

The Act leaves the certification of 

hydrographic products as optional for 

NOAA. The assumption will be, 

however, that if NOAA undertakes to 

write standards, it also intends to offer 

certification of the resulting 

hydrographic products. In general, 

NOAA will not undertake to write 

standards and compliance tests if it can 

foresee that certification will not be 

offered. 

The decision to offer certification will 

be made on a case-by-case basis. 

Circumstances may arise that cause 

standards to be written, but certification 

to not be offered. Such circumstances 

might include:

—A resulting standard for which NOAA 

lacks confidence in the safety 

implications of products that might 

meet that standard; 

—Lack of consensus among the affected 

organizations writing the standard 

and compliance tests; 

—Failure of adoption of the draft 

standards by the participating 

standards-writing body;

—Standards that negatively impact the 

intent of the Act, such as those that 

might exclude existing, suitable 

products; or standards that benefit a 

single company; 

—Adopted standards that are specious; 

or 

—Other relevant reasons as they become 

apparent. 

Paragraph 7 

NOAA does not intend to certify 

products as suitable for any specific 

purpose such as for use as a backdrop 

in Automated Identification Systems. 

Certification only means that there is an 

adopted NOAA standard, documented 

compliance tests; and that the subject 

hydrographic product has been through 

the tests and was determined to be 

compliant with the standard. 

Paragraph 8 

NOAA does not interpret the Act as 

merely a way to provide manufacturers 

with a marketing claim for their 

product, or as a means for one 

manufacturer to differentiate his 

product from the competition, although 

that might be a resulting effect. Neither 

does NOAA interpret the Act as 

intending to result in ‘‘private 

standards’’ that may only apply to one 

manufacturer’s product. 

In addition, NOAA interprets the Act 

as intending to call forth new products, 

not substitutes for official ones being 

provided by the Administration. In 

general, NOAA does not intend to write 

standards and certify products that 

would be used to meet the nautical 

chart and publications carriage 

requirements mandated in the Code of 

Federal Regulations and elsewhere. The 

federal government already provides 

official products for this purpose, and 

there are valid safety reasons for 

maintaining a single, official nautical 

chart or publication where federal 

regulations mandate carriage, and for 

not certifying private products for that 

same purpose. These reasons include:

—Removing any confusion as to what 

products satisfy the federal 

regulations; 

—Having all vessels making navigation 

decisions on exactly the same 

information, particularly in meeting 

situations or at night; 

Federal Register / Vol. 69, No. 199 / Friday, October 15, 2004 / Proposed Rules 61175

—Guaranteeing the timeliness and 

accuracy of updates to official 

charting products and their 

distribution; 

—Removing ambiguity as to the status 

of non-certified data that may be 

included on or with certified private 

hydrographic products; 

—Liability for other information when 

packaged with a certified 

‘‘hydrographic product;’’ and 

—The impracticality of NOAA policing 

all substitute official products—

products on which data changes 

weekly.

Exceptions to this intention might 

include cases where NOAA specifically 

prepares a carriage-compliant product 

for manufacture and distribution by the 

non-Federal entities. 

Paragraph 9 

The presumption will be that use of 

the NOAA emblem will be permitted if 

NOAA proceeds with standards and 

certification. However, the use of the 

NOAA emblem will be carefully 

monitored. In particular, it will be 

monitored to insure that the use of the 

emblem is not done in a manner to 

imply the endorsement of any 

manufacturer; any other data, service, or 

product that may be packaged with a 

certified hydrographic product; or any 

particular use of a certified 

hydrographic product, and to monitor 

that its use not bring discredit upon the 

Agency or the Department. 

Classification 

A. Executive Order 12866 

This proposed rule has been 

determined to be not significant for the 

purposes of Executive Order 12866. 

B. Regulatory Flexibility Act 

The Chief Counsel for Regulation of 

the Department of Commerce certifies to 

the Chief Counsel for Advocacy of the 

Small Business Administration that this 

proposed rule will not have a 

significant, negative economic impact 

on a substantial number of small 

entities. The purpose of this rule is to 

develop and implement a quality 

assurance program that is equally 

available to all applicants, under which 

the Administrator of NOAA may certify 

hydrographic products that satisfy 

standards promulgated by the 

Administrator. ‘‘Hydrographic 

products’’ are any publicly or 

commercially available product 

produced by a non-Federal entity that 

includes or displays hydrographic data. 

The Administrator proposes to fulfill 

this mandate by establishing procedures 

by which hydrographic products are 

proposed for certification; by which 

standards and compliance tests are 

developed, adopted, and applied for 

those products; and by which 

certification may be awarded or denied. 

NOAA is required to develop this 

Quality Assurance Program under the 

authority of 33 U.S.C. 892b. 

The Small Business Administration 

guideline to separate small from large 

businesses is $4 million for Mapmaking 

firms and $5 million for Navigational 

Services to Shipping and Other Support 

Activities for Water Transportation. 

NOAA is unable to determine the total 

number of small entities that will be 

affected by this rule, as it does not 

specifically track this type of 

information. However, based upon 

general knowledge of the industry, 

NOAA believes the majority of the 

entities affected will be small 

businesses. 

The estimated economic impact to 

small entities for submitting 

hydrographic products under this 

program is not expected to be greater 

than $600 per product submitted for 

labor to prepare the application. In 

addition, it is expected that there will be 

an average charge of $5,000 per product 

submitted for compliance testing. This 

proposed rule is voluntary. Only those 

applicants who wish to submit 

hydrographic products and have them 

certified need apply. NOAA does not 

believe this cost will hurt small 

companies, and the estimated costs 

incurred should be offset through the 

benefits in increased sales of the 

product because of its ‘‘certified’’ status 

or else private companies would not 

choose to submit their products to this 

voluntary program. 

C. Paperwork Reduction Act 

This proposed rule contains 

collection-of-information requirements 

subject to the Paperwork Reduction Act 

(PRA). These requirements have been 

submitted to OMB for approval. 

The following requirements have been 

submitted to OMB for approval: 4 hours 

to prepare the application to have 

standards and compliance tests 

developed; 4 hours to prepare the 

application to have a specific 

hydrographic product certified; and 4 

hours for an estimated, single request 

for NOAA to reconsider a decision made 

under the program. These estimates 

include the time for reviewing 

instructions, searching existing data 

sources, writing the application 

information and/or request for 

reconsideration, and for sending the 

applications to NOAA.

Public comment is sought regarding 

whether these proposed collections of 

information are necessary for the proper 

performance of the functions of the 

agency and whether the information 

shall have practical utility; the accuracy 

of the burden estimate; ways to enhance 

the quality, utility, and clarity of the 

information to be collected; and ways to 

minimize the burden of the collection of 

information, including the use of 

automated collection techniques or 

other forms of information technology. 

Send comments on these or any other 

aspects of the collection of information 

to Director, Office of Coast Survey, 

National Ocean Service, NOAA (see 

ADDRESSES) and to David Rostker at the 

Office of Information and Regulatory 

Affairs, OMB, by e-mail to 

David_Rostker@omb.eop.gov or by fax to 

(202) 395–7285. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

There are no duplicative, overlapping, 

or conflicting Federal rules associated 

with this proposed rule.

List of Subjects in 15 CFR Part 996 

Navigation (water), Hydrographic 

products, Certification requirements.

For the reasons stated in the 

preamble, NOS proposes to amend 15 

CFR chapter IX by adding part 996 to 

read as follows:

SUBCHAPTER F—QUALITY ASSURANCE 

AND CERTIFICATION REQUIREMENTS FOR 

NOAA HYDROGRAPHIC PRODUCTS AND 

SERVICES

PART 996—QUALITY ASSURANCE AND 

CERTIFICATION REQUIREMENTS FOR 

NOAA HYDROGRAPHIC PRODUCTS AND 

SERVICES

Subpart A—General 

Sec. 

996.1 Purpose and scope. 

996.2 Definitions. 

996.3 Fees. 

996.4 Liability. 

996.5 Alterations.

Subpart B—The Quality Assurance Program 

for Hydrographic Products 

996.10 Submission and selection of 

hydrographic products for the 

development of standards and 

compliance tests. 

996.11 Development of standards for a 

hydrographic product or class. 

996.12 Development of standards 

compliance tests for a hydrographic 

product or class. 

996.13 Determination of whether to offer 

certification for a hydrographic product 

or class.

61176 Federal Register / Vol. 69, No. 199 / Friday, October 15, 2004 / Proposed Rules 

Subpart C—Certification of a hydrographic 

product and decertification. 

996.20 Submission of a hydrographic 

product for certification. 

996.21 Performance of compliance testing. 

996.22 Certification. 

996.23 Audit and decertification of 

hydrographic products.

Subpart D—Other Quality Assurance 

Program Matters 

996.30 Use of the NOAA emblem. 

996.31 Termination of the Quality 

Assurance Program. 

996.32 Appeals. 

996.33 Acceptance of program by nonFederal entities.

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

Subpart A—General

§ 996.1 Purpose and scope. 

The National Oceanic and 

Atmospheric Administration (NOAA) 

has been mandated to develop and 

implement a quality assurance program 

that is equally available to all 

applicants, under which the 

Administrator may certify hydrographic 

products that satisfy standards 

promulgated by the Administrator. 

‘‘Hydrographic products’’ are any 

publicly or commercially available 

products produced by a non-Federal 

entity that include or display 

hydrographic data. The Administrator 

proposes to fulfill this mandate by 

establishing procedures by which 

hydrographic products are proposed for 

certification; by which standards and 

compliance tests are developed, 

adopted, and applied for those products; 

and by which certification may be 

awarded or denied. These procedures 

would be the mandated Quality 

Assurance Program, and the 

implementation of the program would 

be the execution of those procedures for 

specific hydrographic products.

§ 996.2 Definitions. 

Agency means the National Oceanic 

and Atmospheric Administration. 

Applicant means a non-Federal entity 

that is submitting a hydrographic 

product to the Quality Assurance 

Program for certification. 

Certification means a determination 

made by NOAA that a hydrographic 

product submitted by a non-Federal 

entity has met the requirements 

established by NOAA for a particular 

hydrographic product or class. 

Department means the Department of 

Commerce. 

Hydrographic data means information 

acquired through hydrographic or 

bathymetric surveying, 

photogrammetry, geodetic, geospatial, or 

geomagnetic measurements, tide and 

current observations, or other methods, 

that is used in providing hydrographic 

services. 

Hydrographic product means any 

publicly or commercially available 

product produced by a non-Federal 

entity that includes or displays 

hydrographic data. 

Hydrographic product class means a 

group of hydrographic products with 

similar traits, attributes, purposes, or 

users. 

Hydrographic services means:

—The management, maintenance, 

interpretation, certification, and 

dissemination of bathymetric, 

hydrographic, geodetic, geospatial, 

geomagnetic, and tide and current 

information, including the production 

of nautical charts, nautical 

information databases, and other 

products derived from hydrographic 

data; 

—The development of nautical 

information systems; and 

—Related activities.

Quality Assurance Program means a 

set of procedures by which 

hydrographic products are proposed for 

certification; by which standards and 

compliance tests are developed, and, if 

suitable, are adopted by NOAA for those 

products or their product class; and by 

which certification of individual 

products may be awarded or denied. 

Quality Assurance Program 

implementation means the execution of 

the Quality Assurance Program 

procedures for specific hydrographic 

products. 

Sponsor means a non-Federal entity 

that is submitting a hydrographic 

product to the Quality Assurance 

Program for the development of 

standards and compliance tests.

§ 996.3 Fees. 

NOAA may charge for its Quality 

Assurance Program activities such sums 

as may be permitted or required under 

this Act, or under other statutory 

authorities. Such sums are nonrefundable. NOAA will attempt to 

identify any such charges upon first 

submission of a hydrographic product. 

However, the intent to charge and the 

amounts may change. NOAA will 

promptly notify the sponsor of any such 

changes, and permit the sponsor to 

withdraw hydrographic products from 

consideration under the Quality 

Assurance Program should they so 

choose.

§ 996.4 Liability. 

The Government of the United States 

shall not be liable for any negligence by 

producers of hydrographic products 

certified under this part.

§ 995.5 Alterations. 

NOAA reserves the right to change 

these requirements at any time.

Subpart B—The Quality Assurance 

Program for Hydrographic Products

§ 996.10 Submission and selection of 

hydrographic products for the development 

of standards and compliance tests. 

(a) Any non-Federal entity may 

submit a hydrographic product to be 

considered for the development of 

standards and compliance tests under 

this Quality Assurance Program.

(b) Submission shall be made to the 

Quality Assurance Program address 

below, or to such other address as may 

be indicated in the future: 

Director (N/CS), ATTN: Hydrographic 

Product Quality Assurance Program, 

Office of Coast Survey, NOAA, 1315 

East West Highway, Silver Spring, MD 

20910. 

(c) The submission shall include 

(1) Name and description of the 

proposed hydrographic product. 

(2) The non-Federal entity submitting 

the product for the development of 

standards and compliance tests, and 

contact information for that entity. This 

non-Federal entity shall be known as 

the sponsor. 

(3) The names and contact 

information of proposed representatives 

of the affected communities who have 

committed to participate substantively 

in the writing of standards and 

compliance tests. Affected communities 

might include: manufacturers, users, 

regulators, resellers, developers of 

products that use certified hydrographic 

products such as datasets, and 

manufacturers of competing or 

substitute products. 

(4) The names and contact 

information of the standards setting 

body, and the compliance testing body 

under whose authority it is proposed 

that the standards and compliance tests 

will be written and adopted. 

(5) Information deemed relevant by 

the sponsor for NOAA to consider in 

deciding whether to proceed with the 

development of standards, compliance 

tests, and certification. Such 

information should address at a 

minimum: 

(i) The type and magnitude of the 

public benefits and enhancement of 

public safety that would be achieved; 

(ii) The breadth of support for 

standards and certification among all 

the affected communities; 

(iii) The practicality of writing and 

enforcing an effective and appropriate 

standard; 

(iv) The availability of suitable, 

similar products that may already meet 

the needs of the public; and 

Federal Register / Vol. 69, No. 199 / Friday, October 15, 2004 / Proposed Rules 61177

(v) The required expertise needed to 

write an appropriate standard. 

(d) NOAA may, at its option, define 

a hydrographic product class of which 

the proposed hydrographic product is a 

specific instance. Standards and 

compliance tests may then be prepared 

for the class rather than for an 

individual non-Federal entity’s specific 

product. 

(e) NOAA shall publicize, in the 

Federal Register or by other appropriate 

means, the hydrographic product or 

class in order to solicit comments on the 

proposal that standards and compliance 

tests be written and certification be 

offered for that hydrographic product or 

class. Comments might include, but are 

not limited to, general information; 

statements of interest in participating in 

the development of standards and 

compliance tests; or objections to 

acceptance of the hydrographic product 

or class into this Quality Assurance 

Program. Instructions for commenting 

and the duration of the comment period 

will be included in the announcement. 

(f) NOAA shall decide, if its other 

obligations permit, within 60 calendar 

days of the close of the comment period 

whether to proceed with the 

development of standards, compliance 

tests, and certification for the proposed 

hydrographic product or class. NOAA 

may request further information, and 

shall have additional time as required to 

consider the information once received. 

NOAA’s decision on whether to proceed 

shall be based on the following criteria. 

(1) The magnitude of the public 

benefit and enhancement of public 

safety that would be achieved compared 

to the commitment of federal resources 

that would be required; 

(2) The breadth of support for 

standards and certification among all 

the affected communities; 

(3) The practicality of writing and 

enforcing an effective and appropriate 

standard; 

(4) The availability of suitable, similar 

products that may already meet the 

needs of the public; 

(5) NOAA’s expertise related to the 

expertise needed to write an appropriate 

standard; 

(6) Availability of resources; and 

(7) Other relevant criteria as they 

become apparent. 

(g) NOAA’s decision as to whether the 

proposed hydrographic product or class 

is accepted into the Quality Assurance 

Program shall be publicly announced in 

the Federal Register or by other 

appropriate means, and a written 

notification shall be provided to the 

sponsor. The response shall include 

NOAA’s reason for its decision based on 

the criteria enumerated above. 

(h) Any party, including the sponsor, 

shall have an opportunity to request 

reconsideration of NOAA’s decision. 

Said request shall be submitted in 

writing, to the Quality Assurance 

Program address, postmarked within 30 

days of NOAA’s announcement of its 

decision, and shall contain written 

material supporting the requestor’s 

position. NOAA shall have, if its other 

obligations permit, 60 calendar days 

from the receipt of a request for 

reconsideration to either deny the 

request, or to reconsider and announce 

its decision. 

(i) NOAA’s decision, either the 

original decision if unappealed within 

30 days, or the decision after the request 

for reconsideration, shall be considered 

final. 

(j) NOAA itself may choose to identify 

a hydrographic product or class, which 

may or may not yet exist, but for which 

it intends to adopt standards, 

compliance tests, and to offer 

certification. In such cases, NOAA will 

be considered the sponsor. The 

procedures to be followed for NOAAsponsored hydrographic products or 

classes shall be the same as for those 

sponsored by non-Federal entities, 

including the procedures for 

announcement, comment, and 

reconsideration.

§ 996.11 Development of standards for a 

hydrographic product or class. 

(a) NOAA shall work, to the extent 

practicable, through existing, 

recognized, standards bodies in the 

writing and adopting of standards for a 

hydrographic product or class that 

NOAA has accepted into this program. 

It shall be the responsibility of the 

sponsor to propose an appropriate 

standards writing body. NOAA may 

accept this body at its discretion, or may 

select an alternate body. NOAA will 

then undertake, jointly with the sponsor 

and acknowledged representatives of 

the affected communities, to submit the 

proposal for writing standards to, and to 

secure the cooperation of, the selected 

standards writing body. 

(b) Once accepted as a work item by 

the standards writing body, NOAA shall 

undertake, jointly with representatives 

of the affected community, members of 

the standards body, other governmental 

representatives, and the sponsor as 

appropriate, to write standards for the 

hydrographic product or class according 

to the practices of the standards body 

and the technical needs of the product. 

Participation in the writing of standards 

shall be determined according to the 

procedures of the standards writing 

body. 

(c) NOAA shall then undertake, 

jointly with representatives of the 

affected community, members of the 

standards body and the body itself, 

other governmental representatives, and 

the sponsor as appropriate, to have the 

resulting standard officially adopted by 

the standards body according to the 

procedures of that body. 

(d) NOAA may, at its option, proceed 

without the participation of an existing, 

recognized, standards body should it so 

choose. Such action might be taken, for 

example, if there were no appropriate 

standards body. In this eventuality, 

NOAA shall adhere to the following 

general procedure. 

(1) Announce, in the Federal Register

or by other appropriate means, NOAA’s 

intention to organize and chair a 

working group to write and publish 

standards for the proposed 

hydrographic product or class; 

(2) Solicit, via the Federal Register or 

by other appropriate means, 

participation and select, reject, and/or 

revoke permission to participate as 

NOAA deems appropriate so as to 

proceed in an orderly and representative 

manner in writing a standard; 

(3) Initiate, schedule, host, and chair, 

or designate a chair for, the work of the 

working group;

(4) Circulate, via the Federal Register

or by other appropriate means, the 

drafts of the working group; 

(5) Announce, via the Federal 

Register or by other appropriate means, 

the NOAA proposed standard and 

provide an opportunity for public 

comment; 

(6) Announce, via the Federal 

Register or by other appropriate means, 

and make available as a standard, the 

final version of the standard; and 

(7) Provide the necessary 

administrative support. 

(e) Alternatively, NOAA may at its 

option, proceed by writing a standard by 

itself. Such action might be used, for 

example, in cases where the standard is 

obvious. Producing exact copies of 

existing NOAA products might be one 

such case. Once written, this NOAAauthored standard shall be made 

publicly available for comment, and 

comments shall be considered before 

NOAA publishes the final standard. 

(f) At the conclusion of the standards 

writing, whether through an existing 

standards body, by a NOAA-convened 

working group, or by NOAA itself, 

NOAA shall consider the resulting 

standard and either adopt or reject the 

standard as the NOAA Quality 

Assurance Program Standard for the 

particular hydrographic product or 

class. NOAA’s decision shall be 

61178 Federal Register / Vol. 69, No. 199 / Friday, October 15, 2004 / Proposed Rules 

publicly announced in the Federal 

Register or by other appropriate means. 

(g) Any party may request NOAA to 

reconsider its decision to adopt or reject 

the standards by submitting its request 

in writing to the Quality Assurance 

Program address within 30 days of 

NOAA’s announcement of its decision. 

NOAA shall have, if its other obligations 

permit, 60 calendar days from the 

receipt of a request for reconsideration 

to either deny the request, or to 

reconsider and announce its decision. 

NOAA’s original decision if unappealed 

within 30 days, or its decision upon 

reconsideration shall be considered 

final.

§ 996.12 Development of standards 

compliance tests for a hydrographic 

product or class. 

(a) NOAA shall work, to the extent 

practicable, through existing, 

recognized, compliance testing bodies 

in the writing and adopting of 

compliance tests for a hydrographic 

product or class. It shall be the 

responsibility of the sponsor to propose 

an appropriate compliance testing body. 

NOAA may accept this body at its 

discretion, or may select an alternate 

body. NOAA will then undertake, 

jointly with the sponsor and 

acknowledged representatives of the 

affected communities, to secure the 

cooperation of the selected compliance 

testing body. 

(b) NOAA shall undertake, jointly 

with representatives of the affected 

community, members of the compliance 

testing body, other governmental 

representatives, and the sponsor as 

appropriate, to write compliance tests 

for the hydrographic product class 

according to the practices of the 

compliance testing body and the Quality 

Assurance Program standard adopted by 

NOAA. Participation in the writing of 

compliance tests may be determined 

according to the procedures of the 

compliance testing body. 

(c) NOAA shall then undertake, 

jointly with representatives of the 

affected community, members of the 

compliance testing body and the body 

itself, other governmental 

representatives, and the sponsor as 

appropriate, to have the resulting 

compliance tests adopted according to 

the procedures of that body. 

(d) NOAA may, at its option, proceed 

without the participation of an existing, 

recognized, compliance testing body 

should it so choose. Such action might 

be taken, for example, if there were no 

appropriate compliance testing body. In 

this eventuality, NOAA will adhere to 

the following general procedure: 

(1) Announce, in the Federal Register

or by other appropriate means, NOAA’s 

intention to organize and chair a 

working group to write and publish 

compliance tests for the hydrographic 

product or class; 

(2) Solicit, via the Federal Register or 

by other appropriate means, 

participation and select, reject, and/or 

revoke permission to participate as 

NOAA deems appropriate so as to 

proceed in an orderly and representative 

manner in writing compliance tests; 

(3) Initiate, schedule, host, and chair, 

or designate a chair for, the work of the 

working group; 

(4) Circulate, via the Federal Register, 

or by other appropriate means, the 

drafts of the working group; 

(5) Announce, via the Federal 

Register or by other appropriate means, 

a NOAA proposed final version of the 

compliance tests and provide an 

opportunity for public comment; 

(6) Announce, via the Federal 

Register or by other appropriate means, 

and make available the final version of 

the compliance tests, and 

(7) Provide the necessary 

administrative support. 

(e) Alternatively, NOAA may, at its 

option, proceed by writing compliance 

tests by itself. Such action might be 

used, for example, in cases where the 

tests are obvious. Producing exact 

copies of existing NOAA products might 

be one such case. Once written, these 

NOAA-authored tests shall be made 

publicly available for comment, and 

comments shall be considered before 

NOAA publishes the final compliance 

tests. 

(f) At the conclusion of the 

compliance test writing, whether 

through an existing body, by a NOAAconvened working group, or by NOAA 

itself, NOAA shall consider the 

resulting compliance tests and either 

adopt or reject them as the NOAA 

Quality Assurance Program compliance 

tests for the particular hydrographic 

product standard. NOAA’s decision 

shall be publicly announced in the 

Federal Register or by other appropriate 

means. 

(g) Any party may request NOAA to 

reconsider its decision to adopt or reject 

the compliance tests by submitting its 

request in writing to the Quality 

Assurance Program address within 30 

days of NOAA’s announcement of its 

decision. NOAA shall have, if its other 

obligations permit, 60 calendar days 

after the receipt of a request for 

reconsideration to either deny the 

request, or to reconsider and announce 

its decision. NOAA’s original decision if 

unappealed within 30 days, or its 

decision upon reconsideration shall be 

considered final.

§ 996.13 Determination of whether to offer 

certification for a hydrographic product or 

class. 

(a) Certification of a hydrographic 

product or class shall be at the option 

of NOAA. NOAA may decide at any 

time whether or not to offer certification 

for a product or class. However, it is 

most likely that a determination will be 

made only after a non-Federal entity has 

submitted a specific product for 

certification. NOAA’s decision shall be 

based on the following criteria: 

(1) The suitability of the adopted 

standards and tests for their intended 

purpose; 

(2) The availability of a qualified 

entity to perform the compliance tests; 

(3) Availability of resources; and 

(4) Other relevant criteria as they 

become apparent. 

(b) NOAA’s decision as to whether 

certification for a hydrographic product 

or class is offered shall be publicly 

announced in the Federal Register or by 

other appropriate means. 

(c) Any entity may request NOAA to 

reconsider its decision to offer or not 

offer certification by submitting its 

request in writing to the Quality 

Assurance Program address within 30 

days of NOAA’s announcement of its 

decision. NOAA shall have, if its other 

obligations permit, 60 calendar days 

after the receipt of a request for 

reconsideration to either deny the 

request, or to reconsider and announce 

its decision. 

(d) NOAA’s original decision if 

unappealed within 30 days, or its 

decision upon reconsideration, shall be 

considered final.

Subpart C—Certification of a 

Hydrographic Product and 

Decertification.

§ 996.20 Submission of a hydrographic 

product for certification. 

(a) Upon adoption by NOAA of 

standards and compliance tests, any 

non-Federal entity may submit a 

hydrographic product for certification 

under a particular standard. This nonFederal entity shall be known as the 

applicant. Submission shall be made in 

writing to the Quality Assurance 

Program address. The submission shall 

include: 

(1) Name and description of the 

hydrographic product and its product 

class if any; 

(2) Identification and contact 

information for the non-Federal entity 

submitting the product for certification. 

(3) The identification of the standard 

and compliance tests adopted by this 

Federal Register / Vol. 69, No. 199 / Friday, October 15, 2004 / Proposed Rules 61179

Quality Assurance Program under 

which the hydrographic product is to be 

certified; 

(4) A proposed, qualified, compliance 

testing body to perform the compliance 

tests, which NOAA may accept at its 

discretion, or for which NOAA may 

select an alternative testing body; 

(5) Other information deemed 

relevant by the sponsor or requested by 

NOAA.

§ 996.21 Performance of compliance 

testing. 

(a) NOAA and the applicant shall 

submit the applicant’s hydrographic 

product to the testing body for 

performance of the compliance tests. 

That body shall determine compliance 

or non-compliance of the hydrographic 

product with the NOAA-adopted 

standard, and shall provide to NOAA 

written documentation stating the 

results of the compliance tests according 

to its usual practices. 

(b) Alternatively, NOAA may choose, 

at its option, to perform, have performed 

by a NOAA-designated entity, or waive 

the compliance tests for a hydrographic 

product. This alternative may be used, 

for example, when there is no qualified 

entity to perform the compliance tests, 

where the compliance tests are simple, 

or when self-certification of compliance 

would be appropriate. 

(c) Items failing the compliance tests 

may be changed by the applicant and 

retested. Items passing the compliance 

test upon retest shall be deemed 

compliant as if they had passed said 

tests initially.

§ 996.22 Certification. 

(a) A hydrographic product that has 

passed the compliance tests shall 

automatically be considered for 

certification by NOAA. NOAA shall 

make its certification determination, if 

its other obligations permit, within 60 

calendar days following receipt of the 

compliance test results. NOAA shall 

make a certification determination 

based upon the following criteria: 

(1) The results of the compliance 

tests; 

(2) The potential for the hydrographic 

product to impair public safety; 

(3) Successful completion of any 

administrative requirements, including 

the payment of required fees, as may be 

specified by NOAA;

(4) The potential for certification to 

cause embarrassment to the Agency or 

the Department; 

(5) Other relevant criteria as they 

become apparent 

(b) Hydrographic products receiving a 

certification determination in the 

affirmative shall be designated as 

‘‘certified’’ by NOAA. NOAA shall 

provide a written document to the 

sponsor indicating such, and shall 

announce its determination in the 

Federal Register or by other appropriate 

means. Certification shall mean that the 

hydrographic product has been found to 

be in compliance with the NOAAadopted standard for that hydrographic 

product or class. Certification conveys 

no express or implied warranty as to the 

merchantability or fitness for a 

particular purpose; conveys no express 

or implied liability on the part of the 

Government of the United States for the 

hydrographic products; and conveys no 

automatic, direct or indirect NOAA 

endorsement of any product or service. 

(c) Certification shall be for a term of 

3 years unless otherwise specified by 

the Administrator.

§ 996.23 Audit and decertification of 

hydrographic products. 

(a) NOAA may audit hydrographic 

products it has certified. NOAA may 

conduct audits without advance 

notification. However, visits to 

companies’ facilities will be scheduled. 

Audits may include, but are not limited 

to: 

(1) The producing companies as it 

may affect the certified product; 

(2) Certified products; 

(3) Processes used in making, 

distributing, and marketing certified 

products; 

(4) Use of the NOAA emblem; 

(5) Examination of manufacturers’

public claims about certified 

hydrographic products; 

(6) Other relevant criteria as they 

become apparent. 

(b) NOAA may decertify a 

hydrographic product based on the 

findings of an audit. In general, a 

hydrographic product may be 

decertified if: 

(1) The results of an audit indicate 

that the product no longer meets the 

standards under which it was certified; 

(2) The product has been 

substantively changed from the product 

that was tested and certified; 

(3) Implied or actual claims about the 

product, and/or other data or products 

linked to the product, are judged by 

NOAA to be untrue or misleading; 

(4) The NOAA emblem was 

improperly or inappropriately 

displayed; 

(5) Other relevant reasons as they 

become apparent. 

(c) The entity producing the certified 

hydrographic product shall be notified 

in writing of NOAA’s intent to decertify 

that product. Said entity shall have 30 

days to request reconsideration of that 

intended action in writing to the Quality 

Assurance Program address. Said 

request shall contain the identification 

of the hydrographic product, the 

requestor, and sufficient information for 

NOAA to make a determination on the 

request for reconsideration. 

Alternatively, the entity may correct the 

deficiencies cited by NOAA within 30 

days, notify NOAA in writing at the 

Quality Assurance Program address of 

the corrective action taken, and provide 

sufficient evidence for NOAA to judge 

the correctness and effectiveness of the 

corrective action taken. 

(d) If a request for reconsideration is 

submitted, or if the producing entity 

asserts that the deficiencies have been 

corrected, NOAA shall have 60 calendar 

days, if its other obligations permit, to 

consider the request for reconsideration 

or the corrective action, at which time 

NOAA shall issue its decertification 

decision. The decision and NOAA’s 

reason for its action shall be made 

public in the Federal Register or by 

other appropriate means, and the 

producing entity shall be notified in 

writing. 

(e) NOAA’s decertification, if 

unappealed or uncorrected within 30 

days, shall be considered final. NOAA 

shall notify the producing entity of this 

action in writing, and announce the 

decertification in the Federal Register

or by other appropriate means. 

(f) Upon decertification, 

manufacturers shall discontinue all 

claims of certification, and shall 

discontinue use of the NOAA emblem.

Subpart D—Other Quality Assurance 

Program Matters

§ 996.30 Use of the NOAA emblem. 

(a) Use of the NOAA emblem on 

certified hydrographic products requires 

separate written permission. Use of the 

NOAA emblem must satisfy an interest 

of the Agency, and must not result in 

embarrassment to the Agency or the 

Department. If the NOAA emblem is 

used on products that include other data 

or products, clear indication shall be 

made as to what is NOAA certified, and 

what is not NOAA certified. The 

inclusion of other data or products will 

not constitute any endorsement of, or 

favoritism toward, the other data or 

products by NOAA. Requests for use of 

the NOAA emblem shall be submitted 

in writing to the Quality Assurance 

Program address, and shall include: 

(1) Name and description of the 

hydrographic product(s) on which the 

emblem will be displayed. 

(2) Name and contact information for 

the entity requesting use of the NOAA 

emblem. 

61180 Federal Register / Vol. 69, No. 199 / Friday, October 15, 2004 / Proposed Rules 

1 16 U.S.C. 824e (2000).

(3) Exact samples of all uses intended 

for the NOAA emblem including text 

claims with, within, or associated with 

the hydrographic product, its packaging, 

and advertising that a reasonable person 

might associate with the NOAA 

emblem. 

(4) Proof of NOAA certification. 

(5) Other relevant information as may 

later be specified.

§ 996.31 Termination of the Quality 

Assurance Program. 

(a) NOAA reserves the right to 

terminate the Quality Assurance 

Program for a particular hydrographic 

product or class at any time before 

certification is awarded if it is deemed 

to be in the public interest to do so. 

NOAA shall give written notification to 

the sponsor and other interested parties 

should it decide to exercise this option, 

and shall state the reasons for its action. 

Reasons for termination may include, 

but are not limited to: 

(1) The inability of the standardsdrafting group to reach a consensus on 

the content of the standard; 

(2) Valid objections to the existence of 

NOAA-certification of a particular 

hydrographic product; 

(3) A negative impact on public safety 

should the hydrographic product 

receive certification; 

(4) Other relevant reasons as they 

become apparent. 

(b) The sponsor or other interested 

parties shall have 30 days to request a 

reconsideration of the termination 

action. Said request shall be in writing 

to the Quality Assurance Program 

address, and shall include written 

material supporting the appeal. NOAA 

shall have, if its other obligations 

permit, 60 calendar days from the 

receipt of a request for reconsideration 

to either deny the request, or to 

reconsider and announce its decision. 

(c) NOAA’s decision, either the 

original decision if unappealed within 

30 days, or the decision after the request 

for reconsideration, shall be considered 

final.

§ 996.32 Appeals. 

(a) Any entity may appeal a final 

decision made by the Agency under this 

Quality Assurance Program. Said appeal 

shall be submitted in writing to the 

Quality Assurance Program address, and 

shall contain at least: 

(1) Identification and contact 

information of the appealing entity; 

(2) A statement that this is an appeal 

to a final decision of the Quality 

Assurance Program; 

(3) A description of what decision is 

being appealed; 

(4) A thorough but concise argument 

as to why the requestor believes the 

Quality Assurance Program decision 

being appealed should be set aside. 

(5) Other information as may later be 

determined to be relevant. 

(b) Appeals shall be arbitrated by the 

Assistant Administrator for Ocean 

Services and Coastal Zone Management, 

NOAA, using procedures to be 

established at the time of the appeal, 

and which shall be appropriate to the 

nature and circumstances of the appeal. 

The determination from this arbitration 

shall be final.

§ 996.33 Acceptance of program by nonFederal entities. 

By their voluntary entrance or 

participation in this Quality Assurance 

Program or its activities, all parties 

acknowledge and accept the procedures 

established by this program, including 

the finality of decisions. All parties 

acknowledge and accept that 

information submitted to NOAA under 

this Program shall be deemed to be in 

the public domain, and no 

representation is made as to the 

protection of confidential, proprietary or 

otherwise restricted information.

Dated: October 7, 2004. 

Richard W. Spinrad, 

Assistant Administrator for Ocean Services 

and Coastal Zone Management, National 

Oceanic and Atmospheric Administration.

[FR Doc. 04–23166 Filed 10–14–04; 8:45 am] 

BILLING CODE 3510–JE–P

DEPARTMENT OF ENERGY

Federal Energy Regulatory 

Commission 

18 CFR Part 35 

[Docket No. RM04–14–000] 

Reporting Requirement for Changes in 

Status for Public Utilities With MarketBased Rate Authority 

Issued October 6, 2004.

AGENCY: Federal Energy Regulatory 

Commission, DOE.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Federal Energy 

Regulatory Commission (Commission), 

acting pursuant to section 206 of the 

Federal Power Act (FPA),1 is proposing 

to amend its regulations and to modify 

the market-based rate authority of 

current market-based rate sellers to 

establish a reporting obligation for 

changes in status that apply to public 

utilities authorized to make wholesale 

power sales in interstate commerce at 

market-based rates. In particular, the 

Commission proposes to amend its 

regulations to establish guidelines 

concerning the types of events that 

trigger this reporting obligation and to 

modify the market-based rate authority 

of current market-based rate sellers to 

ensure that all such events are timely 

reported to the Commission by 

eliminating the option to delay 

reporting of such events until 

submission of a market-based rate 

seller’s updated market power analysis. 

We propose that this reporting 

requirement be incorporated into the 

market-based rate tariff of each entity 

that is currently authorized to make 

sales at market-based rates, as well as 

that of all future applicants. The 

Commission seeks public comment on 

its proposal.

DATES: Comments are due November 15, 

2004.

ADDRESSES: Comments may be filed 

electronically via the eFiling link on the 

Commission’s Web site at http://

www.ferc.gov. Commenters unable to 

file comments electronically must send 

an original and 14 copies of their 

comments to: Federal Energy Regulatory 

Commission, Office of the Secretary, 

888 First Street, NE., Washington, DC, 

20426. Refer to the Comment 

Procedures section of the preamble for 

additional information on how to file 

comments.

FOR FURTHER INFORMATION CONTACT: 

Brandon Johnson, Federal Energy 

Regulatory Commission, 888 First 

Street, NE., Washington, DC 20426, 

(202) 502–6143. 

Michelle Barnaby, Federal Energy 

Regulatory Commission, 888 First 

Street, NE., Washington, DC 20426, 

(202) 502–8407.

SUPPLEMENTARY INFORMATION: Before 

Commissioners: Pat Wood, III, 

Chairman; Nora Mead Brownell, Joseph 

T. Kelliher, and Suedeen G. Kelly. 

Notice of Proposed Rulemaking 

Introduction 

1. In order to facilitate our oversight 

of public utilities with market-based 

rate authority, to ensure that the rates 

being charged continue to be just and 

reasonable and to give guidance to 

market participants to facilitate 

compliance with the Commission’s 

reporting requirements, this Notice of 

Proposed Rulemaking proposes to 

standardize and clarify market-based 

rate sellers’ reporting requirement for 

changes in status. In previous orders 

authorizing wholesale power sales in 

interstate commerce at market-based 

rates, the Commission has required 

market-based rate sellers to inform the