42 U.S.C. § 9112 — Procedure

Page 7677 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9112 provisions of section 9117(b)(4) of this title, issuance of the license will cause such upper limit to be exceeded. (d) Issuance conditions; written agreement of compliance; disposal or removal require- ments (1) In issuing a license for the ownership, con- struction, and operation of an ocean thermal en- ergy conversion facility or plantship, the Ad- ministrator shall prescribe conditions which he deems necessary to carry out the provisions of this chapter, or which are otherwise required by any Federal department or agency pursuant to the terms of this chapter. (2) No license shall be issued, transferred, or renewed under this chapter unless the applicant, licensee or transferee first agrees in writing that (A) there will be no substantial change from the plans, operational systems, and meth- ods, procedures, and safeguards set forth in his application, as approved, without prior approval in writing from the Administrator, and (B) he will comply with conditions the Administrator may prescribe in accordance with the provisions of this chapter. (3) The Administrator shall establish such bonding requirements or other assurances as he deems necessary to assure that, upon the rev- ocation, termination, relinquishment, or sur- render of a license, the licensee will dispose of or remove all components of the ocean thermal en- ergy conversion facility or plantship as directed by the Administrator. In the case of components which another applicant or licensee desires to use, the Administrator may waive the disposal or removal requirements until he has reached a decision on the application. In the case of com- ponents lying on or below the seabed, the Ad- ministrator may waive the disposal or removal requirements if he finds that such removal is not otherwise necessary and that the remaining components do not constitute any threat to the environment, navigation, fishing, or other uses of the seabed. (e) License transfer Upon application, a license issued under this chapter may be transferred if the Administrator determines that such transfer is in the public in- terest and that the transferee meets the require- ments of this chapter and the prerequisites to issuance under subsection (c) of this section. (f) License eligibility Any United States citizen who otherwise qualifies under the terms of this chapter shall be eligible to be issued a license for the ownership, construction, and operation of an ocean thermal energy conversion facility or plantship. (g) License term and renewal Licenses issued under this chapter shall be for a term of not to exceed 25 years. Each licensee shall have a preferential right to renew his li- cense subject to the requirements of subsection (c) of this section, upon such conditions and for such term, not to exceed an additional 10 years upon each renewal, as the Administrator deter- mines to be reasonable and appropriate. (Pub. L. 96–320, title I, § 101, Aug. 3, 1980, 94 Stat. 976; Pub. L. 98–623, title VI, § 602(a)(3)–(5), (b), (e)(8)–(11), Nov. 8, 1984, 98 Stat. 3410–3412.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 96–320, Aug. 3, 1980, 94 Stat. 974, known as the Ocean Thermal Energy Conversion Act of 1980, which is classified principally to this chap- ter. For complete classification of this Act to the Code, see Short Title note set out under section 9101 of this title and Tables. The Coastal Zone Management Act of 1972, referred to in subsec. (c)(10), is title III of Pub. L. 89–454 as added by Pub. L. 92–583, Oct. 27, 1972, 86 Stat. 1280, which is classified generally to chapter 33 (§ 1451 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 1451 of Title 16 and Tables. AMENDMENTS 1984—Subsecs. (a), (b)(2). Pub. L. 98–623, § 602(a)(3), (4), substituted ‘‘located in whole or in part between the highwater mark and the seaward boundary of the terri- torial sea’’ for ‘‘located in the territorial sea’’. Subsec. (c)(1). Pub. L. 98–623, § 602(b)(1), substituted ‘‘cannot or will not’’ for ‘‘cannot and will not’’. Subsec. (c)(4). Pub. L. 98–623, § 602(e)(8), substituted ‘‘regulatory authority’’ for ‘‘enforcement authority’’. Subsec. (c)(5). Pub. L. 98–623, § 602(b)(2), substituted ‘‘has not expired’’ for ‘‘has expired’’. Subsec. (c)(6). Pub. L. 98–623, § 602(e)(9), substituted ‘‘application for a license’’ for ‘‘application for li- cense’’. Subsec. (c)(7). Pub. L. 98–623, § 602(a)(5), substituted ‘‘will be documented under the laws of a foreign na- tion’’ for ‘‘will not be documented under the laws of the United States’’. Subsec. (c)(10). Pub. L. 98–623, § 602(b)(3), (5), sub- stituted ‘‘any adjacent’’ for ‘‘each adjacent’’ and ‘‘(16 U.S.C. 1451 et seq.)’’ for ‘‘(33 U.S.C. 1451 et seq.)’’. Subsec. (c)(13). Pub. L. 98–623, § 602(b)(4), substituted ‘‘or’’ for ‘‘and’’ after the semicolon at the end. Subsec. (c)(14). Pub. L. 98–623, § 602(e)(10), substituted ‘‘if a regulation’’ for ‘‘when a regulation’’. Subsec. (d)(2). Pub. L. 98–623, § 602(e)(11), substituted ‘‘applicant, licensee’’ for ‘‘licensee’’. Statutory Notes and Related Subsidiaries TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. Executive Documents TERRITORIAL SEA OF UNITED STATES For extension of territorial sea of United States, see Proc. No. 5928, set out as a note under section 1331 of Title 43, Public Lands. § 9112. Procedure (a) Rules and regulations The Administrator shall, after consultation with the Secretary of Energy and the heads of other Federal agencies, issue regulations to carry out the purposes and provisions of this chapter, in accordance with the provisions of section 553 of title 5, without regard to sub- section (a) thereof. Such regulations shall per- tain to, but need not be limited to, application Page 7678 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9112 for issuance, transfer, renewal, suspension, and termination of licenses. Such regulations shall provide for full consultation and cooperation with all other interested Federal agencies and departments and with any potentially affected coastal State, and for consideration of the views of any interested members of the general public. The Administrator is further authorized, con- sistent with the purposes and provisions of this chapter, to amend or rescind any such regula- tion. The Administrator shall complete issuance of final regulations to implement this chapter within 1 year of August 3, 1980. (b) Site evaluation and preconstruction testing The Administrator, in consultation with the Secretary of the Interior and the Secretary of the department in which the Coast Guard is op- erating may, if he determines it to be necessary, prescribe regulations consistent with the pur- poses of this chapter, relating to those activities in site evaluation and preconstruction testing at potential ocean thermal energy conversion facil- ity or plantship locations that may (1) adversely affect the environment; (2) interfere with other reasonable uses of the high seas or with author- ized uses of the Outer Continental Shelf; or (3) pose a threat to human health and safety. If the Administrator prescribes regulations relating to such activities, such activities may not be un- dertaken after the effective date of such regula- tions except in accordance therewith. (c) Expertise or statutory responsibility descrip- tions Not later than 60 days after August 3, 1980, the Secretary of Energy, the Administrator of the Environmental Protection Agency, the Sec- retary of the department in which the Coast Guard is operating, the Secretary of the Inte- rior, the Chief of Engineers of the United States Army Corps of Engineers, and the heads of any other Federal departments or agencies having expertise concerning, or jurisdiction over, any aspect of the construction or operation of ocean thermal energy conversion facilities or plantships, shall transmit to the Administrator written description of their expertise or statu- tory responsibilities pursuant to this chapter or any other Federal law. (d) Application (1) Within 21 days after the receipt of an appli- cation, the Administrator shall determine whether the application appears to contain all of the information required by paragraph (2) of this subsection. If the Administrator determines that such information appears to be contained in the application, the Administrator shall, no later than 5 days after making such a deter- mination, publish notice of the application and a summary of the plans in the Federal Register. If the Administrator determines that all of the required information does not appear to be con- tained in the application, the Administrator shall notify the applicant and take no further action with respect to the application until such deficiencies have been remedied. (2) Each application shall include such finan- cial, technical, and other information as the Ad- ministrator determines by regulation to be nec- essary or appropriate to process the license pur- suant to section 9111 of this title. (e) Area description; additional license applica- tions (1) At the time notice of an application for an ocean thermal energy conversion facility is pub- lished pursuant to subsection (d) of this section, the Administrator shall publish a description in the Federal Register of an application area en- compassing the site proposed in the application for such facility and within which the thermal plume of one ocean thermal energy conversion facility might be expected to impinge on so as to degrade the thermal gradient used by another ocean thermal energy conversion facility, unless the application is for a license for an ocean ther- mal energy conversion facility to be located within an application area which has already been designated. (2) The Administrator shall accompany such publication with a call for submission of any other applications for licenses for the owner- ship, construction, and operation of an ocean thermal energy conversion facility within the designated application area. Any person intend- ing to file such an application shall submit a no- tice of intent to file an application to the Ad- ministrator not later than 60 days after the pub- lication of notice pursuant to subsection (d) of this section, and shall submit the completed ap- plication no later than 90 days after publication of such notice. The Administrator shall publish notice of any such application received in ac- cordance with subsection (d) of this section. No application for a license for the ownership, con- struction, and operation of an ocean thermal en- ergy conversion facility within the designated application area for which a notice of intent to file was received after such 60-day period, or which is received after such 90-day period has elapsed, shall be considered until action has been completed on all timely filed applications pending with respect to such application area. (f) Copies of application to other agencies An application filed with the Administrator shall constitute an application for all Federal authorizations required for ownership, construc- tion, and operation of an ocean thermal energy conversion facility or plantship, except for au- thorizations required by documentation, inspec- tion, certification, construction, and manning laws and regulations administered by the Sec- retary of the department in which the Coast Guard is operating. At the time notice of any application is published pursuant to subsection (d) of this section, the Administrator shall for- ward a copy of such application to those Federal agencies and departments with jurisdiction over any aspect of such ownership, construction, or operation for comment, review, or recommenda- tion as to conditions and for such other action as may be required by law. Each agency or de- partment involved shall review the application and, based upon legal considerations within its area of responsibility, recommend to the Admin- istrator the approval or disapproval of the appli- cation not later than 45 days after public hear- ings are concluded pursuant to subsection (g) of this section. In any case in which an agency or department recommends disapproval, it shall set forth in detail the manner in which the applica- tion does not comply with any law or regulation Page 7679 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9112 within its area of responsibility and shall notify the Administrator of the manner in which the application may be amended or the license con- ditioned so as to bring it into compliance with the law or regulation involved. (g) Notice, comments, and hearing A license may be issued, transferred, or re- newed only after public notice, opportunity for comment, and public hearings in accordance with this subsection. At least one such public hearing shall be held in the District of Columbia and in any adjacent coastal State to which a fa- cility is proposed to be directly connected by pipeline or electric transmission cable. Any in- terested person may present relevant material at any such hearing. After the hearings required by this subsection are concluded, if the Adminis- trator determines that there exist one or more specific and material factual issues which may be resolved by a formal evidentiary hearing, at least one adjudicatory hearing shall be held in the District of Columbia in accordance with the provisions of section 554 of title 5. The record de- veloped in any such adjudicatory hearing shall be part of the basis for the Administrator’s deci- sion to approve or deny a license. Hearings held pursuant to this subsection shall be consoli- dated insofar as practicable with hearings held by other agencies. All public hearings on all ap- plications with respect to facilities for any des- ignated application area shall be consolidated and shall be concluded not later than 240 days after notice of the initial application has been published pursuant to subsection (d) of this sec- tion. All public hearings on applications with re- spect to ocean thermal energy conversion plantships shall be concluded not later than 240 days after notice of the application has been published pursuant to subsection (d) of this sec- tion. (h) Administrative fee The Administrator shall not take final action on any application unless the applicant has paid to the Administrator a reasonable administra- tive fee, which shall be deposited into miscella- neous receipts of the Treasury. The amount of the fee imposed by the Administrator on any ap- plicant shall reflect the reasonable administra- tive costs incurred by the National Oceanic and Atmospheric Administration in reviewing and processing the application. (i) Approval or denial of application; applica- tions for same area; factors determinative of facility selection (1) The Administrator shall approve or deny any timely filed application with respect to a fa- cility for a designated application area sub- mitted in accordance with the provision of this chapter not later than 90 days after public hear- ings on proposed licenses for that area are con- cluded pursuant to subsection (g) of this section. The Administrator shall approve or deny an ap- plication for a license for ownership, construc- tion, and operation of an ocean thermal energy conversion plantship submitted pursuant to this chapter no later than 90 days after the public hearings on that application are concluded pur- suant to subsection (g) of this section. (2) In the event more than one application for a license for ownership, construction, and oper- ation of an ocean thermal energy conversion fa- cility is submitted pursuant to this chapter for the same designated application area, the Ad- ministrator, unless one or a specific combina- tion of the proposed facilities clearly best serves the national interest, shall make decisions on li- cense applications in the order in which they were submitted to him. (3) In determining whether any one or a spe- cific combination of the proposed ocean thermal energy conversion facilities clearly best serves the national interest, the Administrator, in con- sultation with the Secretary of Energy, shall consider the following factors: (A) the goal of making the greatest possible use of ocean thermal energy conversion by in- stalling the largest capacity practicable in each application area; (B) the amount of net energy impact of each of the proposed ocean thermal energy conver- sion facilities; (C) the degree to which the proposed ocean thermal energy conversion facilities will af- fect the environment; (D) any significant differences between an- ticipated dates and commencement of oper- ation of the proposed ocean thermal energy conversion facilities; and (E) any differences in costs of construction and operation of the proposed ocean thermal energy conversion facilities, to the extent that such differentials may significantly affect the ultimate cost of energy or products to the con- sumer. (Pub. L. 96–320, title I, § 102, Aug. 3, 1980, 94 Stat. 979; Pub. L. 98–623, title VI, § 602(f), Nov. 8, 1984, 98 Stat. 3412.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a) to (c) and (i)(1), (2), was in the original ‘‘this Act’’, meaning Pub. L. 96–320, Aug. 3, 1980, 94 Stat. 974, known as the Ocean Thermal Energy Conversion Act of 1980, which is classi- fied principally to this chapter. For complete classi- fication of this Act to the Code, see Short Title note set out under section 9101 of this title and Tables. AMENDMENTS 1984—Subsec. (h). Pub. L. 98–623 substituted ‘‘The Ad- ministrator shall not take final action on any applica- tion unless the applicant has paid to the Administrator a reasonable administrative fee’’ for ‘‘Each person ap- plying for a license pursuant to this chapter shall remit to the Administrator at the time the application is filed a nonrefundable application fee’’ and ‘‘imposed by the Administrator on any applicant shall reflect the reasonable administrative costs incurred by the Na- tional Oceanic and Atmospheric Administration’’ for ‘‘shall be established by regulation by the Adminis- trator, and shall reflect the reasonable administrative costs incurred’’. Statutory Notes and Related Subsidiaries TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- Page 7680 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9113 rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. § 9113. Protection of submarine electric trans- mission cables and equipment (a) Prohibited acts; misdemeanor; penalty and fine Any person who shall willfully and wrongfully break or injure, or attempt to break or injure, or who shall in any manner procure, counsel, aid, abet, or be accessory to such breaking or in- jury, or attempt to break or injure, any sub- marine electric transmission cable or equipment being constructed or operated under a license issued pursuant to this chapter shall be guilty of a misdemeanor and, on conviction thereof, shall be liable to imprisonment for a term not exceed- ing 2 years, or to a fine not exceeding $5,000, or to both fine and imprisonment, at the discretion of the court. (b) Culpable negligence; misdemeanor; penalty and fine Any person who by culpable negligence shall break or injure any submarine electric trans- mission cable or equipment being constructed or operated under a license issued pursuant to this chapter shall be guilty of a misdemeanor and, on conviction thereof, shall be liable to imprison- ment for a term not exceeding 3 months, or to a fine not exceeding $500, or to both fine and im- prisonment, at the discretion of the court. (c) Exceptions The provisions of subsections (a) and (b) of this section shall not apply to any person who, after having taken all necessary precautions to avoid such breaking or injury, breaks or injures any submarine electric transmission cable or equipment in an effort to save the life or limb of himself or of any other person, or to save his own or any other vessel. (d) Suits for damages The penalties provided in subsections (a) and (b) of this section for the breaking or injury of any submarine electric transmission cable or equipment shall not be a bar to a suit for dam- ages on account of such breaking or injury. (e) Indemnity Whenever any vessel sacrifices any anchor, fishing net, or other fishing gear to avoid injur- ing any submarine electric transmission cable or equipment being constructed or operated under a license issued pursuant to this chapter, the licensee shall indemnify the owner of such vessel for the items sacrificed: Provided, That the owner of the vessel had taken all reasonable precautionary measures beforehand. (f) Repair costs Any licensee who causes any break in or in- jury to any submarine cable or pipeline of any type shall bear the cost of the repairs. (Pub. L. 96–320, title I, § 103, Aug. 3, 1980, 94 Stat. 982.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a), (b), and (e), was in the original ‘‘this Act’’, meaning Pub. L. 96–320, Aug. 3, 1980, 94 Stat. 974, known as the Ocean Thermal Energy Conversion Act of 1980, which is classified prin- cipally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 9101 of this title and Tables. § 9114. Antitrust review (a) Review of applications by Attorney General Whenever any application for issuance, trans- fer, or renewal of any license is received, the Ad- ministrator shall transmit promptly to the At- torney General a complete copy of such applica- tion. Within 90 days of the receipt of the appli- cation, the Attorney General shall conduct such antitrust review of the application as he deems appropriate, and submit to the Administrator any advice or recommendations he deems advis- able to avoid any action upon such application by the Administrator which would create a situ- ation inconsistent with the antitrust laws. If the Attorney General fails to file such views within the 90-day period, the Administrator shall pro- ceed as if such views had been received. The Ad- ministrator shall not issue, transfer, or renew the license during the 90-day period, except upon written confirmation by the Attorney General that he does not intend to submit any further advice or recommendation on the application during such period. (b) Issuance of license as constituting no defense for antitrust violations The issuance of a license under this chapter shall not be admissible in any way as a defense to any civil or criminal action for violation of the antitrust laws of the United States, nor shall it in any way modify or abridge any pri- vate right of action under such laws. Nothing in this section shall be construed to bar the Attor- ney General or the Federal Trade Commission from challenging any anticompetitive situation involved in the ownership, construction, or oper- ation of an ocean thermal energy conversion fa- cility or plantship. (Pub. L. 96–320, title I, § 104, Aug. 3, 1980, 94 Stat. 983.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (b), was in the original ‘‘this Act’’, meaning Pub. L. 96–320, Aug. 3, 1980, 94 Stat. 974, known as the Ocean Thermal Energy Conversion Act of 1980, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 9101 of this title and Tables. § 9115. Adjacent coastal States (a) Designation of adjacent coastal State (1) The Administrator, in issuing notice of ap- plication pursuant to section 9112(d) of this title, shall designate as an ‘‘adjacent coastal State’’ any coastal State which (A) would be di- rectly connected by electric transmission cable or pipeline to an ocean thermal energy conver- sion facility as proposed in an application, or (B) in whose waters any part of such proposed ocean thermal energy conversion facility would be lo- cated, or (C) in whose waters an ocean thermal energy conversion plantship would be operated as proposed in an application.