[Federal Register: January 5, 2005 (Volume 70, Number 3)]
[Rules and Regulations]
[Page 693-703]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ja05-12]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 996
[Docket No: 040908256-4353-02]
RIN 0648-AS50
National Ocean Service; Quality Assurance and Certification
Program for NOAA Hydrographic Products
AGENCY: National Ocean Service (NOS), National Oceanic and Atmospheric
Administration (NOAA), Department of Commerce (DOC).
ACTION: Final rule.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) has
been mandated to develop and implement a quality assurance program that
is equally available to all applicants, under which the Administrator
may certify hydrographic products that satisfy standards promulgated by
the Administrator. ``Hydrographic products'' are any publicly or
commercially available products produced by a non-Federal entity that
include or display hydrographic data. The Administrator will fulfill
this mandate by establishing procedures by which hydrographic products
are proposed for certification; by which standards and compliance tests
are developed, adopted, and applied for those products; and by which
certification may be awarded or denied. These procedures would be the
mandated Quality Assurance Program. The implementation of the program
would be the execution of those procedures for specific hydrographic
products.
DATES: Effective Date: February 4, 2005.
ADDRESSES: Comments in writing should be submitted to Director, Office
of Coast Survey, National Ocean Service, NOAA (N/CS), 1315 East West
Highway, Silver Spring, MD 20910. Written comments may be faxed to
(301) 713-4019. Comments by e-mail should be submitted to
HydrographicProducts@noaa.gov.
FOR FURTHER INFORMATION CONTACT: Mr. David B. Enabnit, Office of Coast
Survey, NOAA (N/CSx2), 1315 East-West Highway, Silver Spring, MD,
20910, (voice phone) 301-713-2770 x132, (fax phone) 301-713-4019, (e-
mail) Dave.Enabnit@noaa.gov.
SUPPLEMENTARY INFORMATION:
[[Page 694]]
Discussion of Comments Received and Changes Made
On October 15, 2004, we published a notice of proposed rulemaking
entitled, ``Quality Assurance and Certification Program for NOAA
Hydrographic Products'' in the Federal Register (FR 69 FR 61172), and
solicited comments. Eight sets of comments were received on this
proposed rule and the policy statement that accompanied it. The
substance of the comments and the resulting changes made to the
regulation are summarized below. Most of the comments were made in the
context of a single, specific hydrographic product. However, the
Program has been established to accommodate the full range of potential
products allowed by the law, which is extremely broad (see
``Definitions'' under the ``Background'' section below).
One set of comments stated that the Quality Assurance Program was
an inappropriate activity for NOAA, and a number of reasons were
listed. In response, NOAA cites the Hydrographic Services Improvement
Act of 1998, as amended (codified as 33 U.S.C. 892b), which mandated
the establishment of this program. Therefore, NOAA has no latitude in
the matter. The comments further suggested that a substantial fee
structure would be appropriate for the program. Again, NOAA refers to
the enabling legislation that limits the fees NOAA may charge.
Comments were received that, in some instances, NOAA might adopt
existing standards or compliance tests for purposes of the Quality
Assurance Program. ISO 19379 and the RTCM standard for Electronic Chart
Systems were two examples cited. NOAA recognizes this opportunity, and
specifically refers to this possibility in paragraphs 2, 5, and 6 of
the policy statement. New sections Sec. 996.11(e) and Sec. 996.12(e)
have been added to the regulation, and subsequent subsections
appropriately renumbered, to insure that this option is available when
the program is implemented.
One set of comments stated that Sec. 996.20, ``Submission of a
hydrographic product for certification,'' in which an applicant submits
a hydrographic product to NOAA, was unnecessary and burdensome, and
that applicants should submit products directly to the compliance
testing body. Upon review, it was determined that the submission
required by this section is only 4 items of administrative information
and should impose little burden on an applicant. However, it serves an
important purpose in allowing NOAA to advise applicants on the
appropriate standard and version against which to certify; identifying
approved compliance testing organizations that are available; and other
matters that may aid the applicant or avoid the cost of an
inappropriate test. This section of the regulation was left unchanged.
One set of comments asserted that current standards for electronic
charts, charting systems, distribution of digital chart data and
updates, electronic charting system size and cost, and the support
infrastructure had fatal shortcomings. These statements reflect
obsolete information, and the writer is referred, for example, to IHO
Technical Resolution A3.11--``ENC/SENC Distribution Option,'' and to
IEC draft standard 62376 ``Electronic chart systems (ECS)--Operational
and performance requirements, methods of testing, and required test
results.'' No specific change to the NOAA Quality Assurance Program was
proposed with these comments, and none were made.
One set of comments offered that Sec. 996.5, ``Alterations,''
appeared to permit NOAA to change program regulations without following
the Administrative Procedure Act that allows for public comment. NOAA's
intent was to follow such procedures in executing this section, but
since it is redundant with NOAA's existing authority under the
Administrative Procedure Act, the section was deleted from the
regulations to eliminate confusion.
One set of comments thought the regulations should contain criteria
for the acceptance of testing bodies, and pointed to the Coast Guard's
procedures for accepting independent laboratories. Sec. 996.20(4) of
the rule was enhanced to include characteristics of such laboratories
that were suggested by the commenter, but the procedures used by the
Coast Guard were thought to be excessive for the NOAA program and were
not added to the rule.
One set of comments objected to that portion of Sec. 996.33,
``Acceptance of program by non-Federal entities'' which states that
``information submitted to NOAA under this Program shall be deemed to
be in the public domain, and no representation is made as to the
protection of confidential, proprietary or otherwise restricted
information.'' The comment stated that some products might be the
result of proprietary processes that a producing company would not wish
disclosed. After careful review of the information submission
requirements in the regulation, it was determined that all were of an
administrative nature necessary to run the program, and would be
unlikely to contain any proprietary information. The one exception
might be Sec. 996.23(3), ``Audit and decertification of hydrographic
products.'' A new section, Sec. 996.23(c), was inserted in the
regulation, and the subsequent subsections appropriately renumbered, to
permit producing companies to not provide information during an audit,
but at the risk of decertification due to a resulting lack of
information.
One set of comments queried whether foreign governments or foreign
companies could participate in the Quality Assurance Program. At this
time, NOAA believes the program would be open to foreign governments
and foreign companies.
Comments were received that NOAA should reconsider its policy only
to certify hydrographic products as meeting a standard rather than
certifying them for a particular use. NOAA's policy would mean, for
example, that NOAA will not certify products as suitable for a specific
purpose such as a backdrop in Automated Identification Systems, or for
meeting chart carriage regulations. Under the program, certification
only means that there is an adopted NOAA standard, documented
compliance tests, and that a product had passed the tests and was
compliant with the standard. The comments asserted that such a policy
did not meet the requirements of the Hydrographic Services Improvement
Act; would not support the mandatory carriage of electronic charts that
the Coast Guard has been directed to establish; and that it violates
the Regulatory Flexibility Act.
The policy of certifying for ``standards-compliance'' rather than
``use'' recognizes that in most cases, NOAA does not have the authority
to make the determination of suitability for use. The determination of
suitability of a backdrop for an Automated Identification System, for
example, lies with the Coast Guard. In other cases, suitability cannot
be determined. For example, sport fishing maps (a potential
hydrographic product) can be certified as to their data content and
data quality, but in no way could NOAA certify that such maps would
improve one's catch. Finally, in the specific case of electronic
nautical charts, the federal government already provides official
products for this purpose, and there are valid safety reasons for
maintaining a single, official nautical chart or publication where
federal regulations mandate carriage. NOAA's policy was supported in
comments from the Hydrographic Services Review Panel, a federal
advisory committee of individuals who are especially qualified to
advise the Administrator of NOAA on
[[Page 695]]
hydrographic program matters, and which was established by Congress.
The panel commented that NOAA was correct in not certifying privately
made electronic charts as meeting chart carriage regulations. They
cited safety as the reason and urged NOAA to continue to maintain the
single, official nautical charts where federal regulations mandate
chart carriage.
The comments asserting that NOAA's proposed program was not in
compliance with the Hydrographic Services Improvement Act did not
specify in what way the program was out of compliance. NOAA continues
to believe that this policy is in full compliance with the Act. The Act
only requires certification against standards promulgated by the
Administrator, and makes no statement about certification for a
particular use. In fact, an earlier version of the 2002 Hydrographic
Services Improvement Act amendments legislation included such a
mandate, but the provision was specifically removed before final
passage. The Hydrographic Services Review Panel agreed with NOAA,
commenting that, in its opinion, the proposed Quality Assurance Program
satisfied the statutory requirement established by Congress.
NOAA has provided, however, in a separate rulemaking, a process
whereby private companies may download from the NOAA Web site and
market exact copies of official NOAA Electronic Navigational Charts
(ENC), may reformat and market copies of NOAA ENCs, and may package
additional data with those ENCs and market the result. After completing
a self-certification process to become distributors, such products
would comply with federal chart carriage requirements. (See
Certification Requirements for Distributors of NOAA Electronic
Navigational Chart/NOAA Hydrographic Products, 69 FR 61165 (Oct. 15,
2004).) This provides additional commercial opportunities for private
companies while preserving the safety of navigation.
As to whether NOAA's policy would deny adequate electronic chart
coverage to support the mandatory carriage of electronic charts, which
the Coast Guard has been directed to implement, NOAA sees no cause for
concern, nor was that necessarily the purpose of the Act. NOAA already
provides 100 percent coverage of its area of responsibility with
official raster navigational charts (one type of electronic chart), 45
percent coverage with official electronic navigational charts (a second
type of electronic chart) with completion of the full suite scheduled
during 2007, and the U.S. Army Corps of Engineers anticipates
completing full coverage of primary and secondary inland river routes
with official electronic charts during 2007, thus serving vessels that
carry 90 percent of the inland river shipping tonnage. Also, while the
Coast Guard must promulgate electronic chart carriage regulations by
January 1, 2007, the effective date of those regulations; exactly which
vessels are to be covered; and what waivers may be issued is left to
their discretion. NOAA, the Corps of Engineers, and the Coast Guard
will continue to coordinate closely to insure that electronic chart
carriage is not mandated before suitable, official charts are
available.
One comment stated that the rule was contrary to the Regulatory
Flexibility Act, in that, since the certified products would not be
certified as meeting federal chart carriage regulations, a company
supplying electronic charts would be unable to broaden their markets as
fully as they would if chart carriage certification were part of the
process. While NOAA appreciates that carriage-compliance certification
could make the benefits of NOAA certification marginally greater, the
proposed program still provides a net benefit to all companies wishing
to participate. The program supports companies in making and selling
electronic charts into the non-regulated market, which is 2 orders of
magnitude larger than the regulated market. It supports the use of
privately made electronic charts aboard regulated vessels if used as an
aid to navigation, rather than as the means of meeting chart carriage
regulations. It does not remove a market for privately made electronic
charts since they never have been certified for regulatory carriage and
do not have that market. Also, because NOAA and the Corps of Engineers
give away, at no cost, official electronic charts for meeting carriage
regulations, it appears that the portion of the market that the program
does not make readily accessible to private companies would be small.
Changes From the Proposed Rule
Although NOAA intended from the outset to allow renewal of
certification of products under subpart C, it became clear after the
regulations were proposed that such a renewal process was not described
in the regulations. NOAA considers inclusion of a renewal process to be
an essential part and logical outgrowth of the certification process
because it allows certified companies the option of renewing their
certification for two additional years. The option to renew
certifications will allow companies to continue to benefit from the
increased sales of their product resulting from ``certified'' status.
Therefore, a renewal process is now included in Sec. 996.22(d) and
(e).
Background
Definitions
Hydrographic products--any publicly or commercially available
product produced by a non-Federal entity that includes or displays
hydrographic data.
Hydrographic data--information acquired through hydrographic or
bathymetric surveying, photogrammetry, geodetic, geospatial, or
geomagnetic measurements, tide and current observations, or other
methods, that is used in providing hydrographic services.
Hydrographic services--hydrographic services means:
--The management, maintenance, interpretation, certification, and
dissemination of bathymetric, hydrographic, geodetic, geospatial,
geomagnetic, and tide and current information, including the production
of nautical charts, nautical information databases, and other products
derived from hydrographic data;
--The development of nautical information systems; and
--Related activities.
The Act
The Hydrographic Services Improvement Act of 1998, as amended by
the Hydrographic Services Improvement Act Amendments of 2002 (codified
as 33 U.S.C. 892b), directs:
1. IN GENERAL--The Administrator--
A. By not later than 2 years after the date of enactment of the
Hydrographic Services Improvement Act Amendments of 2002, shall,
subject to the availability of appropriations, develop and implement a
quality assurance program that is equally available to all applicants,
under which the Administrator may certify hydrographic products that
satisfy the standards promulgated by the Administrator under section
303(a)(3) of the Act;
B. May authorize the use of the emblem or any trademark of the
Administration on a hydrographic product certified under subparagraph
(A); and
C. May charge a fee for such certification and use.
Section 303(a)(3) referenced above states that the Administrator
shall ``promulgate standards for hydrographic services provided by the
administration.''
[[Page 696]]
Statement of Policy
NOAA will act in accordance with the following policies in
fulfilling its Quality Assurance Program responsibilities under the
Hydrographic Services Improvement Act.
1. NOAA interprets the Act as primarily intending to stimulate the
development of hydrographic products by the private sector. The intent
of NOAA's participation in this private sector activity is to provide
the public a measure of confidence in the content, quality, and
adherence to published standards of the resulting hydrographic
products. NOAA interprets the Act in a broad sense. Therefore,
``standards'' and ``quality assurance program'' are considered to be
generic terms that apply to any means of satisfying the intent of the
Act and the intent of NOAA's participation, and that are within NOAA's
authorities.
2. Standards, and quality assurance tests and procedures, will
preferably be written in collaboration with those affected, not just
written and promulgated by NOAA. In some instances, NOAA may adopt an
existing standard or quality assurance program, rather than originate
one. NOAA may develop standards and quality assurance tests on its own
initiative should, for example, it be deemed beneficial for those
standards and tests to be established before the appearance of a
particular hydrographic product. This approach may be used to stimulate
the production of a product that NOAA anticipates would be beneficial.
3. The level to which standards are developed, and to which quality
assurance is performed, may vary for different hydrographic products.
For example, certification for manufacturers making exact copies of
NOAA products may be implemented in a substantially differently manner
from the certification of a complex cartographic product. NOAA
considers all such ``standards'' and ``certifications'' as meeting the
intent of the Act.
4. NOAA will work, to the extent practicable, through existing,
recognized, standards and certification bodies. This will permit the
use of proven methods of developing, documenting, and implementing
standards and certification. It will leverage NOAA's resources with
those of such bodies. It will provide a more widely accepted result
than had NOAA promulgated a standard solely under its own name.
5. NOAA will establish the required Quality Assurance Program for
hydrographic products. The Quality Assurance Program will be general
procedures that apply to all hydrographic products, and specific tests
and procedures that apply to specific hydrographic products. The
specific quality assurance tests and procedures for a particular
hydrographic product will be based on the standards identified by NOAA
or written collaboratively with the affected parties.
6. Certification of a specific hydrographic product under the
Quality Assurance Program will be at the option of NOAA. However,
certification will be the goal in cases where NOAA decides to write or
adopt standards. Any non-Federal entity will be permitted to submit for
certification hydrographic products that it asserts are compliant with
the NOAA-adopted standards.
7. Certification of products under the Program will mean that the
hydrographic product has been found to be compliant with the NOAA-
adopted standards for that particular hydrographic product.
Certification conveys no express or implied warranty as to the
merchantability or fitness for a particular purpose; conveys no express
or implied liability on the part of the Government of the United States
for the hydrographic products; and conveys no automatic, direct or
indirect NOAA endorsement of any product or service. NOAA may audit
hydrographic products it has certified, and may decertify hydrographic
products based on its findings.
8. NOAA does not intend to write standards and perform quality
assurance for every hydrographic product submitted by a non-Federal
entity. NOAA will select those deemed appropriate for standards and
certification by taking into account:
--The magnitude of the public benefit and enhancement of public safety
that would be achieved compared to the commitment of resources that
would be required;
--The breadth of support for standards and certification among all the
affected communities;
--The practicality of writing and enforcing an effective standard and
compliance tests;
--The availability of suitable, similar products that may already meet
the needs of the public;
--NOAA's expertise related to that needed to write an appropriate
standard;
--Availability of resources; and
--Other relevant criteria as they become apparent.
In general, NOAA does not intend to write standards and certify
products that would be used to meet the nautical chart and publications
carriage requirements mandated in the Code of Federal Regulations and
elsewhere. The federal government already provides official products
for this purpose, and there are valid safety reasons for maintaining a
single complying product for regulated carriage.
9. Use of the NOAA emblem on certified hydrographic products will
require separate written permission. Use of the NOAA emblem must
satisfy an interest of the Agency, and must not result in embarrassment
to the Agency. If the NOAA emblem is used on products that include
other data or products, clear indication will be required as to what is
NOAA certified. The inclusion of other data or products will not
constitute any endorsement of, or favoritism toward, the other data or
products by NOAA.
10. NOAA may charge for its standards and certification activities
such sums as may be permitted or required under this Act, or under
other statutory authorities.
11. NOAA will operate the Quality Assurance Program in an open and
public manner. All standards, tests, and procedures will be publicly
available. The public will be given ample notification of activities
under the Quality Assurance Program, and will be given ample
opportunity to comment and have their comments heard. This opportunity
to participate in the Quality Assurance Program and the opportunity to
submit hydrographic products for certification under that Program will
be equally available to all.
12. In all matters, NOAA will proceed in a manner that maximizes
public safety.
Discussion of Selected Sections of the Policy
Paragraph 1
NOAA interprets the Act as an attempt to increase the richness of
the suite of hydrographic products available to the public, and to
ensure the safety of those products. In addition, NOAA interprets the
Act to include ``services'' as meeting the definition of ``hydrographic
products,'' and may choose to write or adopt standards, quality
assurance tests and procedures, and to certify appropriate services.
Nautical chart updating services, or an electronic navigational chart
distribution service, are examples of services that NOAA may consider a
``hydrographic product'' under the Act.
Other tools within NOAA's authority may be used to meet the
purposes of the Act. Depending on the complexity of the hydrographic
product, and the amount of risk the public would be exposed to,
[[Page 697]]
NOAA reserves the right to select any authorized means of establishing
new products and providing a measure of confidence in the content,
quality, and adherence to standards for those products. Thus, for
purposes of accountability under the Act, NOAA is interpreting
``standards,'' ``quality assurance,'' and ``certification'' as generic
terms describing an outcome rather than as a specific formalism or
document. For example, some non-Federal entities may intend to
reproduce exactly NOAA products such as the Tide Tables. In this case,
a ``standard'' may be a simple agreement, in which the manufacturer
agrees to certain standards of copy quality. Further, because the
complexity is low, self-certification might be used as the means of
compliance testing. Other such authorities available to NOAA that may
be used include: business licenses, Agent Agreements, no-cost
contracts, self-certification, adoption of industry standards, and the
use of existing certification organizations.
Paragraph 2
Participation by the affected communities in writing standards and
compliance tests provides an important guarantee that there is broad
need for standards and certification, and that the resulting standard
and certification meet the needs of the affected communities. Relevant
communities might include: manufacturers, users, regulators, resellers,
developers of products that use certified hydrographic products such as
datasets, and manufacturers of competing or substitute products.
Participation in the drafting of standards and quality assurance
tests and procedures must be substantive and continuing by the
designated members of the affected communities. The responsibility will
lie with the non-Federal entity submitting a hydrographic product for
certification to propose a broadly based group of acknowledged
representatives of affected groups, and to secure their participation
in the writing of standards and compliance tests.
Paragraph 6
The Act leaves the certification of hydrographic products as
optional for NOAA. The assumption will be, however, that if NOAA
undertakes to write standards, it also intends to offer certification
of the resulting hydrographic products. In general, NOAA will not
undertake to write standards and compliance tests if it can foresee
that certification will not be offered.
The decision to offer certification will be made on a case-by-case
basis. Circumstances may arise that cause standards to be written, but
certification to not be offered. Such circumstances might include:
--A resulting standard for which NOAA lacks confidence in the safety
implications of products that might meet that standard;
--Lack of consensus among the affected organizations writing the
standard and compliance tests;
--Failure of adoption of the draft standards by a participating
standards-writing body;
--Standards that negatively impact the intent of the Act, such as those
that might exclude existing, suitable products; or standards that
benefit a single company;
--Adopted standards that are specious; or
--Other relevant reasons as they become apparent.
Paragraph 7
NOAA does not intend to certify products as suitable for any
specific purpose such as for use as a backdrop in Automated
Identification Systems. Certification only means that there is an
adopted NOAA standard, documented compliance tests; and that the
subject hydrographic product has been through the tests and was
determined to be compliant with the standard.
Paragraph 8
NOAA does not interpret the Act as merely a way to provide
manufacturers with a marketing claim for their product, or as a means
for one manufacturer to differentiate his product from the competition,
although that might be a resulting effect. Neither does NOAA interpret
the Act as intending to result in ``private standards'' that may only
apply to one manufacturer's product.
In addition, NOAA interprets the Act as intending to call forth new
products, not substitutes for official ones being provided by the
Administration. In general, NOAA does not intend to write standards and
certify products that would be used to meet the nautical chart and
publications carriage requirements mandated in the Code of Federal
Regulations and elsewhere. The federal government already provides
official products for this purpose, and there are valid safety reasons
for maintaining a single, official nautical chart or publication where
federal regulations mandate carriage, and for not certifying private
products for that same purpose. These reasons include:
--Having all vessels making navigation decisions on exactly the same
information, particularly in meeting situations or at night;
--Removing any confusion as to what products satisfy the federal
regulations;
--Guaranteeing the timeliness and accuracy of updates to official
charting products and their distribution;
--Removing ambiguity as to the status of non-certified data that may be
included on or with certified private hydrographic products;
--Liability for other information when packaged with a certified
``hydrographic product;'' and
--The impracticality of NOAA policing all substitute official
products--products on which data changes weekly.
Exceptions to this intention might include, for example, cases where
NOAA specifically prepares a carriage-compliant product for manufacture
and distribution by the non-Federal entities.
Paragraph 9
The presumption will be that use of the NOAA emblem will be
permitted if NOAA proceeds with standards and certification. However,
the use of the NOAA emblem will be carefully monitored. In particular,
it will be monitored to insure that the use of the emblem is not done
in a manner to imply the endorsement of any manufacturer; any other
data, service, or product that may be packaged with a certified
hydrographic product; or any particular use of a certified hydrographic
product, and to monitor that its use not bring discredit upon the
Agency or the Department.
Classification
A. Executive Order 12866
This proposed rule has been determined to be not significant for
the purposes of Executive Order 12866.
B. Regulatory Flexibility Act
The Chief Counsel for Regulation of the Department of Commerce
certifies to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule will not have a significant,
economic impact on a substantial number of small entities. The purpose
of this rule is to develop and implement a quality assurance program
that is equally available to all applicants, under which the
Administrator of NOAA may certify hydrographic products that satisfy
standards promulgated by the Administrator. ``Hydrographic
[[Page 698]]
products'' are any publicly or commercially available product produced
by a non-Federal entity that includes or displays hydrographic data.
The Administrator will fulfill this mandate by establishing procedures
by which hydrographic products are proposed for certification; by which
standards and compliance tests are developed, adopted, and applied for
those products; and by which certification may be awarded or denied.
NOAA is required to develop this Quality Assurance Program under the
authority of 33 U.S.C. 892b.
The Small Business Administration guideline to separate small from
large businesses is $4 million for Mapmaking firms and $5 million for
Navigational Services to Shipping and Other Support Activities for
Water Transportation. NOAA is unable to determine the total number of
small entities that will be affected by this rule, as it does not
specifically track this type of information, and because the law is
extraordinarily broad in the range of hydrographic products that may be
submitted for certification. However, based upon general knowledge of
the industry, NOAA believes the majority of the entities affected may
be small businesses.
Public comments were received on the proposed rule with respect to
one proposed hydrographic product--electronic nautical charts intended
for use by certain classes of regulated vessels. NOAA's regulations are
intended only to certify hydrographic products as meeting a standard
rather than certifying them for a particular use. In evaluating the
comments, NOAA concluded that in most cases NOAA does not have the
authority to make the determination of suitability for use. The
determination of suitability of a backdrop for an Automated
Identification System, for example, lies with the Coast Guard. In other
cases, suitability cannot be determined. For example, sport fishing
maps can be certified as to their data content and data quality, but
NOAA could not certify that such maps would improve one's catch.
Finally, in the specific case of electronic nautical charts, the
federal government already provides official products for this purpose,
and there are valid safety reasons for maintaining a single, official
nautical chart or publication where federal regulations mandate
carriage. NOAA's policy was supported in comments from the Hydrographic
Services Review Panel, a federal advisory committee of individuals who
are especially qualified to advise the Administrator of NOAA on
hydrographic program matters, and which was established by Congress.
The panel commented that NOAA was correct in not certifying privately
made electronic charts as meeting chart carriage regulations. They
cited safety as the reason and urged NOAA to continue to maintain the
single, official nautical charts where federal regulations mandate
chart carriage.
While NOAA appreciates that carriage-compliance certification could
make the benefits of NOAA certification marginally greater, the
proposed program still provides a net benefit to all companies wishing
to participate. The program supports companies in making and selling
electronic charts into the non-regulated market, which is 2 orders of
magnitude larger than the regulated market. It supports the use of
privately made electronic charts aboard regulated vessels if used as an
aid to navigation rather than as the means of meeting chart carriage
regulations. It does not remove a market for privately made electronic
charts since they never have been certified for regulatory carriage and
do not have that market. Also, because NOAA and the Corps of Engineers
give away, at no cost, official electronic charts for meeting carriage
regulations, it appears that the portion of the market that the program
does not make readily accessible to private companies would be small.
Finally, the number of companies that NOAA estimates might be affected
by this certification for ``standards compliance'' as opposed to
certification for ``use'' with respect to electronic nautical charts is
between 3 and 9, not all of which may be small entities. Furthermore,
the impact the program has on small entities will be positive. Thus the
rule does not appear to rise to the level of causing a significant
economic impact on a substantial number of small businesses.
The estimated economic impact to small entities for submitting
hydrographic products under this program is not expected to be greater
than $600 per product submitted for labor to prepare the application.
In addition, it is expected that there will be an average charge of
$5,000 per product submitted for compliance testing. This proposed rule
is voluntary. Only those applicants who wish to submit hydrographic
products and have them certified need apply. NOAA does not believe this
cost will hurt small companies, and the estimated costs incurred should
be offset through the benefits in increased sales of the product
because of its ``certified'' status or else private companies would not
choose to submit their products to this voluntary program.
C. Paperwork Reduction Act
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act (PRA), which OMB has approved under
control number 0648-0507.
The following requirements have been submitted to OMB for approval:
4 hours to prepare the application to have standards and compliance
tests developed; 4 hours to prepare the application to have a specific
hydrographic product certified; and 4 hours for an estimated, single
request for NOAA to reconsider a decision made under the program. These
estimates include the time for reviewing instructions, searching
existing data sources, writing the application information and/or
request for reconsideration, and for sending the applications to NOAA.
Send comments regarding this burden estimate, or any other aspect of
this data collection, including suggestions for reducing the burden, to
NOS, (see ADDRESSES) and by e-mail to David_Rostker@omb.eop.gov, or
fax to (202) 395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
There are no duplicative, overlapping, or conflicting Federal rules
associated with this proposed rule.
List of Subjects in 15 CFR Part 996
Navigation (water), Hydrographic products, Certification
requirements.
0
For the reasons stated in the preamble, NOS amends 15 CFR chapter IX by
adding part 996 to read as follows:
Headings
Subchapter F--Quality Assurance and Certification Requirements for NOAA
Hydrographic Products and Services
PART 996--QUALITY ASSURANCE AND CERTIFICATION REQUIREMENTS FOR NOAA
HYDROGRAPHIC PRODUCTS AND SERVICES
Subpart A--General
Sec.
996.1 Purpose and scope.
996.2 Definitions.
996.3 Fees.
996.4 Liability.
Subpart B--The Quality Assurance Program for Hydrographic Products
996.10 Submission and selection of hydrographic products for the
development of standards and compliance tests.
[[Page 699]]
996.11 Development of standards for a hydrographic product or class.
996.12 Development of standards compliance tests for a hydrographic
product or class.
996.13 Determination of whether to offer certification for a
hydrographic product or class.
Subpart C--Certification of a Hydrographic Product and Decertification.
996.20 Submission of a hydrographic product for certification.
996.21 Performance of compliance testing.
996.22 Certification.
996.23 Audit and decertification of hydrographic products.
Subpart D--Other Quality Assurance Program Matters
996.30 Use of the NOAA emblem.
996.31 Termination of the Quality Assurance Program.
996.32 Appeals.
996.33 Acceptance of program by non-Federal entities.
Authority: 33 U.S.C. 892b.
Subpart A--General
Sec. 996.1 Purpose and scope.
The National Oceanic and Atmospheric Administration (NOAA) was
mandated to develop and implement a quality assurance program that is
equally available to all applicants, under which the Administrator may
certify hydrographic products that satisfy standards promulgated by the
Administrator. ``Hydrographic products'' are any publicly or
commercially available products produced by a non-Federal entity that
include or display hydrographic data. The procedures established here
by which hydrographic products are proposed for certification; by which
standards and compliance tests are developed, adopted, and applied for
those products; and by which certification may be awarded or denied are
the mandated Quality Assurance Program. The execution of those
procedures for specific hydrographic products is the implementation of
the program.
Sec. 996.2 Definitions.
Agency means the National Oceanic and Atmospheric Administration.
Applicant means a non-Federal entity that is submitting a
hydrographic product to the Quality Assurance Program for
certification.
Certification means a determination made by NOAA that a
hydrographic product submitted by a non-Federal entity has met the
requirements established by NOAA for a particular hydrographic product
or class.
Department means the Department of Commerce.
Hydrographic data means information acquired through hydrographic
or bathymetric surveying, photogrammetry, geodetic, geospatial, or
geomagnetic measurements, tide and current observations, or other
methods, that is used in providing hydrographic services.
Hydrographic product means any publicly or commercially available
product produced by a non-Federal entity that includes or displays
hydrographic data.
Hydrographic product class means a group of hydrographic products
with similar traits, attributes, purposes, or users.
Hydrographic services means
(1) The management, maintenance, interpretation, certification, and
dissemination of bathymetric, hydrographic, geodetic, geospatial,
geomagnetic, and tide and current information, including the production
of nautical charts, nautical information databases, and other products
derived from hydrographic data;
(2) The development of nautical information systems; and
(3) Related activities.
Quality Assurance Program means a set of procedures by which
hydrographic products are proposed for certification; by which
standards and compliance tests are developed, and, if suitable, are
adopted by NOAA for those products; and by which certification of
individual products may be awarded or denied.
Quality Assurance Program implementation means the execution of the
Quality Assurance Program procedures for specific hydrographic
products.
Sponsor means a non-Federal entity that is submitting a
hydrographic product to the Quality Assurance Program for the
development of standards and compliance tests.
Sec. 996.3 Fees.
NOAA may charge for its Quality Assurance Program activities such
sums as may be permitted or required under this Act, or under other
statutory authorities. Such sums are non-refundable. NOAA will attempt
to identify any such charges upon first submission of a hydrographic
product. However, the intent to charge and the amounts may change. NOAA
will promptly notify the sponsor of any such changes, and will permit
the sponsor to withdraw hydrographic products from consideration under
the Quality Assurance Program should they so choose.
Sec. 996.4 Liability.
The Government of the United States shall not be liable for any
negligence by producers of hydrographic products certified under this
part.
Subpart B--The Quality Assurance Program for Hydrographic Products
Sec. 996.10 Submission and selection of hydrographic products for the
development of standards and compliance tests.
(a) Any non-Federal entity may submit a hydrographic product to be
considered for the development of standards and compliance tests under
this Quality Assurance Program.
(b) Submission shall be made to the Quality Assurance Program
address below, or to such other address as may be indicated in the
future: Director (N/CS), ATTN: Hydrographic Product Quality Assurance
Program, Office of Coast Survey, NOAA, 1315 East West Highway, Silver
Spring, MD 20910.
(c) The submission shall include
(1) Name and description of the proposed hydrographic product.
(2) The non-Federal entity submitting the product for the
development of standards and compliance tests, and contact information
for that entity. This non-Federal entity shall be known as the sponsor.
(3) The names and contact information of proposed representatives
of the affected communities who have committed to participate
substantively in the writing of standards and compliance tests.
Affected communities might include: manufacturers, users, regulators,
resellers, developers of products that use certified hydrographic
products such as datasets, and manufacturers of competing or substitute
products.
(4) The names and contact information of the standards setting
body, and the compliance testing body under whose authority it is
proposed that the standards and compliance tests be written and
adopted.
(5) Information deemed relevant by the sponsor for NOAA to consider
in deciding whether to proceed with the development of standards,
compliance tests, and certification. Such information should address at
a minimum:
(i) The type and magnitude of the public benefits and enhancement
of public safety that would be achieved;
(ii) The breadth of support for standards and certification among
all the affected communities;
(iii) The practicality of writing and enforcing an effective and
appropriate standard;
[[Page 700]]
(iv) The availability of suitable, similar products that may
already meet the needs of the public; and
(v) The required expertise needed to write an appropriate standard.
(d) NOAA may, at its option, define a hydrographic product class of
which the proposed hydrographic product is a specific instance.
Standards and compliance tests may then be prepared for the class
rather than for an individual non-Federal entity's specific product.
(e) NOAA shall publicize, in the Federal Register or by other
appropriate means, the hydrographic product or class in order to
solicit comments on the proposal that standards and compliance tests be
written and certification be offered for that hydrographic product or
class. Comments might include, but are not limited to, general
information; statements of interest in participating in the development
of standards and compliance tests; or objections to acceptance of the
hydrographic product or class into this Quality Assurance Program.
Instructions for commenting and the duration of the comment period will
be included in the announcement.
(f) NOAA shall decide, if its other obligations permit, within 60
calendar days of the close of the comment period whether to proceed
with the development of standards, compliance tests, and certification
for the proposed hydrographic product or class. NOAA may request
further information, and shall have additional time as required to
consider the information once received. NOAA's decision on whether to
proceed shall be based on the following criteria:
(1) The magnitude of the public benefit and enhancement of public
safety that would be achieved compared to the commitment of federal
resources that would be required;
(2) The breadth of support for standards and certification among
all the affected communities;
(3) The practicality of writing and enforcing an effective and
appropriate standard;
(4) The availability of suitable, similar products that may already
meet the needs of the public;
(5) NOAA's expertise related to the expertise needed to write an
appropriate standard;
(6) Availability of resources; and
(7) Other relevant criteria as they become apparent.
(g) NOAA's decision as to whether the proposed hydrographic product
or class is accepted into the Quality Assurance Program shall be
publicly announced in the Federal Register or by other appropriate
means, and a written notification shall be provided to the sponsor. The
response shall include NOAA's reason for its decision based on the
criteria enumerated above.
(h) Any party, including the sponsor, shall have an opportunity to
request reconsideration of NOAA's decision. Said request shall be
submitted in writing, to the Quality Assurance Program address,
postmarked within 30 days of NOAA's announcement of its decision, and
shall contain written material supporting the requestor's position.
NOAA shall have, if its other obligations permit, 60 calendar days from
the receipt of a request for reconsideration to either deny the
request, or to reconsider and announce its decision.
(i) NOAA's decision, either the original decision if unappealed
within 30 days, or the decision after the request for reconsideration,
shall be considered final.
(j) NOAA itself may choose to identify a hydrographic product or
class, which may or may not yet exist, but for which it intends to
adopt standards, compliance tests, and to offer certification. In such
cases, NOAA will be considered the sponsor. The procedures to be
followed for NOAA-sponsored hydrographic products or classes shall be
the same as for those sponsored by non-Federal entities, including the
procedures for announcement, comment, and reconsideration.
Sec. 996.11 Development of standards for a hydrographic product or
class.
(a) NOAA shall work, to the extent practicable, through existing,
recognized, standards bodies in the writing and adopting of standards
for a hydrographic product or class that NOAA has accepted into this
program. It shall be the responsibility of the sponsor to propose an
appropriate standards writing body. NOAA may accept this body at its
discretion, or may select an alternate body. NOAA will then undertake,
jointly with the sponsor and acknowledged representatives of the
affected communities, to submit the proposal for writing standards to,
and to secure the cooperation of, the selected standards writing body.
(b) Once accepted as a work item by the standards writing body,
NOAA shall undertake, jointly with representatives of the affected
community, members of the standards body, other governmental
representatives, and the sponsor as appropriate, to write standards for
the hydrographic product or class according to the practices of the
standards body and the technical needs of the product. Participation in
the writing of standards shall be determined according to the
procedures of the standards writing body.
(c) NOAA shall then undertake, jointly with representatives of the
affected community, members of the standards body and the body itself,
other governmental representatives, and the sponsor as appropriate, to
have the resulting standard officially adopted by the standards body
according to the procedures of that body.
(d) NOAA may, at its option, proceed without the participation of
an existing, recognized, standards body should it so choose. Such
action might be taken, for example, if there were no appropriate
standards body. In this eventuality, NOAA shall adhere to the following
general procedure.
(1) Announce, in the Federal Register or by other appropriate
means, NOAA's intention to organize and chair a working group to write
and publish standards for the proposed hydrographic product or class;
(2) Solicit, via the Federal Register or by other appropriate
means, participation and select, reject, and/or revoke permission to
participate as NOAA deems appropriate so as to proceed in an orderly
and representative manner in writing a standard;
(3) Initiate, schedule, host, and chair, or designate a chair for,
the work of the working group;
(4) Circulate, via the Federal Register or by other appropriate
means, the drafts of the working group;
(5) Announce, via the Federal Register or by other appropriate
means, the NOAA proposed standard and provide an opportunity for public
comment;
(6) Announce, via the Federal Register or by other appropriate
means, and make available as a standard, the final version of the
standard; and
(7) Provide the necessary administrative support.
(e) NOAA may, at its option, adopt an existing standard as the NOAA
standard for this program. In this eventuality, NOAA shall adhere to
the following general procedure.
(1) Announce, in the Federal Register or by other appropriate
means, NOAA's intention to adopt an existing standard for the proposed
hydrographic product or class; and
(2) Solicit, via the Federal Register or by other appropriate means
including public meetings, comment on the standard that NOAA proposes
to adopt, and shall consider the comments received.
(f) Alternatively, NOAA may at its option, proceed by writing a
standard by itself. Such action might be used, for example, in cases
where the standard is
[[Page 701]]
obvious. Producing exact copies of existing NOAA products might be one
such case. Once written, this NOAA-authored standard shall be made
publicly available for comment, and comments shall be considered before
NOAA publishes the final standard.
(g) At the conclusion of the standards writing, whether through an
existing standards body, by a NOAA-convened working group, by adopting
an existing standard, or by NOAA itself, NOAA shall consider the
resulting standard and comments, and either adopt or reject the
standard as the NOAA Quality Assurance Program Standard for the
particular hydrographic product or class. NOAA's decision shall be
publicly announced in the Federal Register or by other appropriate
means.
(h) Any party may request NOAA to reconsider its decision to adopt
or reject the standard by submitting its request in writing to the
Quality Assurance Program address within 30 days of NOAA's announcement
of its decision. NOAA shall have, if its other obligations permit, 60
calendar days from the receipt of a request for reconsideration to
either deny the request, or to reconsider and announce its decision.
NOAA's original decision if unappealed within 30 days, or its decision
upon reconsideration shall be considered final.
Sec. 996.12 Development of standards compliance tests for a
hydrographic product or class.
(a) NOAA shall work, to the extent practicable, through existing,
recognized, compliance testing bodies in the writing and adopting of
compliance tests for a hydrographic product or class. It shall be the
responsibility of the sponsor to propose an appropriate compliance
testing body. NOAA may accept this body at its discretion, or may
select an alternate body. NOAA will then undertake, jointly with the
sponsor and acknowledged representatives of the affected communities,
to secure the cooperation of the selected compliance testing body.
(b) NOAA shall undertake, jointly with representatives of the
affected community, members of the compliance testing body, other
governmental representatives, and the sponsor as appropriate, to write
compliance tests for the hydrographic product or class according to the
practices of the compliance testing body and the Quality Assurance
Program standard adopted by NOAA. Participation in the writing of
compliance tests may be determined according to the procedures of the
compliance testing body.
(c) NOAA shall then undertake, jointly with representatives of the
affected community, members of the compliance testing body and the body
itself, other governmental representatives, and the sponsor as
appropriate, to have the resulting compliance tests adopted according
to the procedures of that body.
(d) NOAA may, at its option, proceed without the participation of
an existing, recognized, compliance testing body should it so choose.
Such action might be taken, for example, if there were no appropriate
compliance testing body. In this eventuality, NOAA will adhere to the
following general procedure:
(1) Announce, in the Federal Register or by other appropriate
means, NOAA's intention to organize and chair a working group to write
and publish compliance tests for the hydrographic product or class;
(2) Solicit, via the Federal Register or by other appropriate
means, participation and select, reject, and/or revoke permission to
participate as NOAA deems appropriate so as to proceed in an orderly
and representative manner in writing compliance tests;
(3) Initiate, schedule, host, and chair, or designate a chair for,
the work of the working group;
(4) Circulate, via the Federal Register, or by other appropriate
means, the drafts of the working group;
(5) Announce, via the Federal Register or by other appropriate
means, a NOAA proposed final version of the compliance tests and
provide an opportunity for public comment;
(6) Announce, via the Federal Register or by other appropriate
means, and make available the final version of the compliance tests,
and
(7) Provide the necessary administrative support.
(e) NOAA may, at its option, adopt existing compliance tests as the
NOAA compliance tests for this program. In this eventuality, NOAA shall
adhere to the following general procedure:
(1) Announce, in the Federal Register or by other appropriate
means, NOAA's intention to adopt existing compliance tests for the
proposed hydrographic product or class; and
(2) Solicit, via the Federal Register or by other appropriate means
including public meetings, comment on the proposed compliance tests
that NOAA proposes to adopt, and shall consider the comments received.
(f) Alternatively, NOAA may, at its option, proceed by writing
compliance tests by itself. Such action might be used, for example, in
cases where the tests are obvious. Producing exact copies of existing
NOAA products might be one such case. Once written, these NOAA-authored
tests shall be made publicly available for comment, and comments shall
be considered before NOAA publishes the final compliance tests.
(g) At the conclusion of the compliance test writing, whether
through an existing body, by a NOAA-convened working group, by adopting
existing compliance tests, or by NOAA itself, NOAA shall consider the
resulting compliance tests and comments, and either adopt or reject
them as the NOAA Quality Assurance Program compliance tests for the
particular hydrographic product standard. NOAA's decision shall be
publicly announced in the Federal Register or by other appropriate
means.
(h) Any party may request NOAA to reconsider its decision to adopt
or reject the compliance tests by submitting its request in writing to
the Quality Assurance Program address within 30 days of NOAA's
announcement of its decision. NOAA shall have, if its other obligations
permit, 60 calendar days after the receipt of a request for
reconsideration to either deny the request, or to reconsider and
announce its decision. NOAA's original decision if unappealed within 30
days, or its decision upon reconsideration shall be considered final.
Sec. 996.13 Determination of whether to offer certification for a
hydrographic product or class.
(a) Certification of a hydrographic product or class shall be at
the option of NOAA. NOAA may decide at any time whether or not to offer
certification for a product or class. However, it is most likely that a
determination will be made only after a non-Federal entity has
submitted a specific product for certification. NOAA's decision shall
be based on the following criteria:
(1) The suitability of the adopted standards and tests for their
intended purpose;
(2) The availability of a qualified entity to perform the
compliance tests;
(3) Availability of resources; and
(4) Other relevant criteria as they become apparent.
(b) NOAA's decision as to whether certification for a hydrographic
product or class is offered shall be publicly announced in the Federal
Register or by other appropriate means.
(c) Any entity may request NOAA to reconsider its decision to offer
or not offer certification by submitting its request in writing to the
Quality Assurance Program address within 30 days of NOAA's announcement
of its decision. NOAA shall have, if its other
[[Page 702]]
obligations permit, 60 calendar days after the receipt of a request for
reconsideration to either deny the request, or to reconsider and
announce its decision.
(d) NOAA's original decision if unappealed within 30 days, or its
decision upon reconsideration, shall be considered final.
Subpart C--Certification of a Hydrographic Product and
Decertification.
Sec. 996.20 Submission of a hydrographic product for certification.
(a) Upon adoption by NOAA of standards and compliance tests, any
non-Federal entity may submit a hydrographic product for certification
under a particular standard. This non-Federal entity shall be known as
the applicant. Submission shall be made in writing to the Quality
Assurance Program address. The submission shall include:
(1) Name and description of the hydrographic product and its
product class if any;
(2) Identification and contact information for the non-Federal
entity submitting the product for certification.
(3) The identification of the standard and compliance tests adopted
by this Quality Assurance Program under which the hydrographic product
is to be certified;
(4) A proposed, qualified, competent, independent compliance
testing body to perform the compliance tests, which NOAA may accept at
its discretion, or for which NOAA may select an alternative testing
body;
(5) Other information deemed relevant by the sponsor or requested
by NOAA.
(b) [Reserved]
Sec. 996.21 Performance of compliance testing.
(a) NOAA and the applicant shall submit the applicant's
hydrographic product to the testing body for performance of the
compliance tests. That body shall determine compliance or non-
compliance of the hydrographic product with the NOAA-adopted standard,
and shall provide to NOAA written documentation stating the results of
the compliance tests according to its usual practices.
(b) Alternatively, NOAA may choose, at its option, to perform, have
performed by a NOAA-designated entity, or waive the compliance tests
for a hydrographic product. This alternative may be used, for example,
when there is no qualified entity to perform the compliance tests,
where the compliance tests are simple, or when self-certification of
compliance would be appropriate.
(c) Items failing the compliance tests may be changed by the
applicant and retested. Items passing the compliance test upon retest
shall be deemed compliant as if they had passed said tests initially.
Sec. 996.22 Certification.
(a) A hydrographic product that has passed the compliance tests
shall automatically be considered for certification by NOAA. NOAA shall
make its certification determination, if its other obligations permit,
within 60 calendar days following receipt of the compliance test
results. NOAA shall make a certification determination based upon the
following criteria:
(1) The results of the compliance tests;
(2) The potential for the hydrographic product to impair public
safety;
(3) Successful completion of any administrative requirements,
including the payment of required fees, as may be specified by NOAA;
(4) The potential for certification to cause embarrassment to the
Agency or the Department;
(5) Other relevant criteria as they become apparent.
(b) Hydrographic products receiving a certification determination
in the affirmative shall be designated as ``certified'' by NOAA. NOAA
shall provide a written document to the sponsor indicating such, and
shall announce its determination in the Federal Register or by other
appropriate means. Certification shall mean that the hydrographic
product has been found to be in compliance with the NOAA-adopted
standard for that hydrographic product or class. Certification conveys
no express or implied warranty as to the merchantability or fitness for
a particular purpose; conveys no express or implied liability on the
part of the Government of the United States for the hydrographic
products; and conveys no automatic, direct or indirect NOAA endorsement
of any product or service.
(c) Certification shall be for a term of 3 years unless otherwise
specified by the Administrator.
(d) A certification may be renewed, at the request of sponsor and
the option of NOAA, for a period of 2 years. Sponsors may request the
renewal of a certification by writing to the Quality Assurance Program
address at least 120 calendar days before the expiration of an existing
certification. The request shall include:
(1) Identifying and contact information for the sponsor;
(2) Identifying information for the relevant hydrographic
product(s) and the standard(s) under which they were certified;
(3) Evidence sufficient to assure NOAA that the hydrographic
product still meets the standard under which it was certified; and
(4) Other information as may be requested by NOAA.
(e) NOAA shall decide within 60 calendar days, if its other
obligations permit, whether to renew a certification. NOAA's decision
shall be based on whether the hydrographic product continues to meet
the applicable standard, and other relevant criteria as they become
apparent.
(f) The sponsor shall have an opportunity to request
reconsideration of NOAA's decision. Said request shall be submitted in
writing, to the Quality Assurance Program address, postmarked within 30
days of NOAA's announcement of its decision, and shall contain written
material supporting the requestor's position. NOAA shall have, if its
other obligations permit, 30 calendar days from the receipt of a
request for reconsideration to either deny the request, or to
reconsider and announce its decision.
(g) NOAA's decision, either the original decision if unappealed
within 30 days, or the decision after the request for reconsideration,
shall be considered final.
Sec. 996.23 Audit and decertification of hydrographic products.
(a) NOAA may audit hydrographic products it has certified. NOAA may
conduct audits without advance notification. However, visits to
companies' facilities will be scheduled. Audits may include, but are
not limited to:
(1) The producing companies as it may affect the certified product;
(2) Certified products;
(3) Processes used in making, distributing, and marketing certified
products;
(4) Use of the NOAA emblem;
(5) Examination of manufacturers' public claims about certified
hydrographic products;
(6) Other relevant criteria as they become apparent.
(b) NOAA may decertify a hydrographic product based on the findings
of an audit. In general, a hydrographic product may be decertified if:
(1) The results of an audit indicate that the product no longer
meets the standards under which it was certified;
(2) The product has been substantively changed from the product
that was tested and certified;
[[Page 703]]
(3) Implied or actual claims about the product, and/or other data
or products linked to the product, are judged by NOAA to be untrue or
misleading;
(4) The NOAA emblem was improperly or inappropriately displayed;
(5) Other relevant reasons as they become apparent.
(c) A producing company may decline to reveal information during an
audit that it declares to be proprietary or for other reasons. In this
eventuality, NOAA reserves the right to decertify based on lack of
information should it deem that action appropriate.
(d) The entity producing the certified hydrographic product shall
be notified in writing of NOAA's intent to decertify that product. Said
entity shall have 30 days to request reconsideration of that intended
action in writing to the Quality Assurance Program address. Said
request shall contain the identification of the hydrographic product,
the requestor, and sufficient information for NOAA to make a
determination on the request for reconsideration. Alternatively, the
entity may correct the deficiencies cited by NOAA within 30 days,
notify NOAA in writing at the Quality Assurance Program address of the
corrective action taken, and provide sufficient evidence for NOAA to
judge the correctness and effectiveness of the corrective action taken.
(e) If a request for reconsideration is submitted, or if the
producing entity asserts that the deficiencies have been corrected,
NOAA shall have 60 calendar days, if its other obligations permit, to
consider the request for reconsideration or the corrective action, at
which time NOAA shall issue its decertification decision. The decision
and NOAA's reason for its action shall be made public in the Federal
Register or by other appropriate means, and the producing entity shall
be notified in writing.
(f) NOAA's decertification, if unappealed or uncorrected within 30
days, shall be considered final. NOAA shall notify the producing entity
of this action in writing, and announce the decertification in the
Federal Register or by other appropriate means.
(g) Upon decertification, manufacturers shall discontinue all
claims of certification, and shall discontinue use of the NOAA emblem.
Subpart D--Other Quality Assurance Program Matters
Sec. 996.30 Use of the NOAA emblem.
(a) Use of the NOAA emblem on certified hydrographic products
requires separate written permission. Use of the NOAA emblem must
satisfy an interest of the Agency, and must not result in embarrassment
to the Agency or the Department. If the NOAA emblem is used on products
that include other data or products, clear indication shall be made as
to what is NOAA certified, and what is not NOAA certified. The
inclusion of other data or products will not constitute any endorsement
of, or favoritism toward, the other data or products by NOAA. Requests
for use of the NOAA emblem shall be submitted in writing to the Quality
Assurance Program address, and shall include:
(1) Name and description of the hydrographic product(s) on which
the emblem will be displayed.
(2) Name and contact information for the entity requesting use of
the NOAA emblem.
(3) Exact samples of all uses intended for the NOAA emblem
including text claims with, within, or associated with the hydrographic
product, its packaging, and advertising that a reasonable person might
associate with the NOAA emblem.
(4) Proof of NOAA certification.
(5) Other relevant information as may later be specified.
(b) [Reserved]
Sec. 996.31 Termination of the Quality Assurance Program.
(a) NOAA reserves the right to terminate the Quality Assurance
Program for a particular hydrographic product or class at any time
before certification is awarded if it is deemed to be in the public
interest to do so. NOAA shall give written notification to the sponsor
and other interested parties should it decide to exercise this option,
and shall state the reasons for its action. Reasons for termination may
include, but are not limited to:
(1) The inability of the standards-drafting group to reach a
consensus on the content of the standard;
(2) Valid objections to the existence of NOAA-certification of a
particular hydrographic product or class;
(3) A negative impact on public safety should the hydrographic
product receive certification;
(4) Other relevant reasons as they become apparent.
(b) The sponsor or other interested parties shall have 30 days to
request a reconsideration of the termination action. Said request shall
be in writing to the Quality Assurance Program address, and shall
include written material supporting the appeal. NOAA shall have, if its
other obligations permit, 60 calendar days from the receipt of a
request for reconsideration to either deny the request, or to
reconsider and announce its decision.
(c) NOAA's decision, either the original decision if unappealed
within 30 days, or the decision after the request for reconsideration,
shall be considered final.
Sec. 996.32 Appeals.
(a) Any entity may appeal a final decision made by the Agency under
this Quality Assurance Program. Said appeal shall be submitted in
writing to the Quality Assurance Program address, and shall contain at
least:
(1) Identification and contact information of the appealing entity;
(2) A statement that this is an appeal to a final decision of the
Quality Assurance Program;
(3) A description of what decision is being appealed;
(4) A thorough but concise argument as to why the requestor
believes the Quality Assurance Program decision being appealed should
be set aside.
(5) Other information as may later be determined to be relevant.
(b) Appeals shall be arbitrated by the Assistant Administrator for
Ocean Services and Coastal Zone Management, NOAA, using procedures to
be established at the time of the appeal, and which shall be
appropriate to the nature and circumstances of the appeal. The
determination from this arbitration shall be final for purposes of
judicial review under the Administrative Procedure Act and other
statutes.
Sec. 996.33 Acceptance of program by non-Federal entities.
By their voluntary entrance or participation in this Quality
Assurance Program or its activities, all parties acknowledge and accept
the procedures established by this program, including the finality of
decisions. All parties acknowledge and accept that information
submitted to NOAA under this Program shall be deemed to be in the
public domain, and no representation is made as to the protection of
confidential, proprietary or otherwise restricted information.
Dated: December 27, 2004.
Alan Neuschatz,
Associate Assistant Administrator for Management, Ocean Services and
Coastal Zone Management, National Oceanic and Atmospheric
Administration.
[FR Doc. 05-133 Filed 1-4-05; 8:45 am]