42 U.S.C. § 9118 — Marine environmental protection and

Page 7682 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9118 ological changes in the environment which may occur as a result of deployment and oper- ation of large numbers of ocean thermal en- ergy conversion facilities and plantships; (3) the nature and magnitude of any oceano- graphic, biological or other changes in the en- vironment which may occur as a result of the operation of electric transmission cables and equipment located in the water column or on or in the seabed, including the hazards of acci- dentally severed transmission cables; and (4) whether the magnitude of one or more of the cumulative environmental effects of de- ployment and operation of large numbers of ocean thermal energy conversion facilities and plantships requires that an upper limit be placed on the number or total capacity of such facilities or plantships to be licensed under this chapter for simultaneous operation, ei- ther overall or within specific geographic areas. (c) Plan submittal to Congress Within 180 days after August 3, 1980, the Ad- ministrator shall prepare a plan to carry out the program described in subsections (a) and (b) of this section, including necessary funding levels for the next 5 fiscal years, and submit the plan to the Congress. (d) Reduction of program to minimum necessary level The program established by subsections (a) and (b) of this section shall be reduced to the minimum necessary to perform baseline studies and to analyze monitoring data, when the Ad- ministrator determines that the program has re- sulted in sufficient knowledge to make the de- terminations enumerated in subsection (b) of this section with an acceptable level of con- fidence. (e) Environmental impact statement The issuance of any license for ownership, con- struction, and operation of an ocean thermal en- ergy conversion facility or plantship shall be deemed to be a major Federal action signifi- cantly affecting the quality of the human envi- ronment for purposes of section 4332(2)(C) of this title. For all timely applications covering pro- posed facilities in a single application area, and for each application relating to a proposed plantship, the Administrator shall, pursuant to such section 4332(2)(C) of this title and in co- operation with other involved Federal agencies and departments, prepare a single environ- mental impact statement, which shall fulfill the requirement of all Federal agencies in carrying out their responsibilities pursuant to this chap- ter to prepare an environmental impact state- ment. Each such draft environmental impact statement relating to proposed facilities shall be prepared and published within 180 days after no- tice of the initial application has been published pursuant to section 9112(d) of this title. Each such draft environmental impact statement re- lating to a proposed plantship shall be prepared and published within 180 days after notice of the application has been published pursuant to sec- tion 9112(d) of this title. Each final environ- mental impact statement shall be published not later than 90 days following the date on which public hearings are concluded pursuant to sec- tion 9112(g) of this title. The Administrator may extend the deadline for publication of a specific draft or final environmental impact statement to a later specified time for good cause shown in writing. (f) Discharge of pollutants An ocean thermal energy conversion facility or plantship licensed under this subchapter shall be deemed not to be a ‘‘vessel or other floating craft’’ for the purposes of section 1362(12)(B) of title 33. (Pub. L. 96–320, title I, § 107, Aug. 3, 1980, 94 Stat. 984.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (b)(4) and (e), was in the original ‘‘this Act’’, meaning Pub. L. 96–320, Aug. 3, 1980, 94 Stat. 974, known as the Ocean Thermal En- ergy 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. § 9118. Marine environmental protection and safety of life and property at sea (a) Coast Guard operations The Secretary of the department in which the Coast Guard is operating shall, subject to recog- nized principles of international law, prescribe by regulation and enforce procedures with re- spect to any ocean thermal energy conversion facility or plantship licensed under this chapter, including, but not limited to, rules governing vessel movement, procedures for transfer of ma- terials between such a facility or plantship and transport vessels, designation and marking of anchorage areas, maintenance, law enforcement, and the equipment, training, and maintenance required (1) to promote the safety of life and property at sea, (2) to prevent pollution of the marine environment, (3) to clean up any pollut- ants which may be discharged, and (4) to other- wise prevent or minimize any adverse impact from the construction and operation of such ocean thermal energy conversion facility or plantship. (b) Promotion of safety of life and property The Secretary of the department in which the Coast Guard is operating shall issue and enforce regulations, subject to recognized principles of international law, with respect to lights and other warning devices, safety equipment, and other matters relating to the promotion of safe- ty of life and property on any ocean thermal en- ergy conversion facility or plantship licensed under this chapter. (c) Marking components for protection of naviga- tion Whenever a licensee fails to mark any compo- nent of such an ocean thermal energy conver- sion facility or plantship in accordance with ap- plicable regulations, the Secretary of the de- partment in which the Coast Guard is operating shall mark such components for the protection of navigation, and the licensee shall pay the cost of such marking. Page 7683 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9118 1 So in original. Probably should be followed by a period. (d) Safety zones (1) Subject to recognized principles of inter- national law and after consultation with the Secretary of Commerce, the Secretary of the In- terior, the Secretary of State, and the Secretary of Defense, the Secretary of the department in which the Coast Guard is operating shall des- ignate a zone of appropriate size around and in- cluding any ocean thermal energy conversion fa- cility licensed under this chapter and may des- ignate such a zone around and including any ocean thermal energy conversion plantship li- censed under this chapter for the purposes of navigational safety and protection of the facil- ity or plantship. The Secretary of the depart- ment in which the Coast Guard is operating shall by regulation define permitted activities within such zone consistent with the purpose for which it was designated. The Secretary of the department in which the Coast Guard is oper- ating shall, not later than 30 days after publica- tion of notice pursuant to section 9112(d) of this title, designate such safety zone with respect to any proposed ocean thermal energy conversion facility or plantship. (2) In addition to any other regulations, the Secretary of the department in which the Coast Guard is operating is authorized, in accordance with this subsection, to establish a safety zone to be effective during the period of construction of an ocean thermal energy conversion facility or plantship licensed under this chapter, and to issue rules and regulations relating thereto. (3) Except in a situation involving force majeure, a licensee of an ocean thermal energy conversion facility or plantship shall not permit a vessel, registered in or flying the flag of a for- eign state, to call at, load or unload cargo at, or otherwise utilize such a facility or plantship li- censed under this chapter unless (A) the foreign state involved has agreed, by specific agreement with the United States, to recognize the juris- diction of the United States over the vessel and its personnel, in accordance with the provisions of this chapter, while the vessel is located with- in the safety zone, and (B) the vessel owner or operator has designated an agent in the United States for receipt of service of process in the event of any claim or legal proceeding resulting from activities of the vessel or its personnel while located within such a safety zone. (e) Rules and regulations; vessels; ‘‘ocean ther- mal energy conversion facility’’ defined (1) The Secretary of the department in which the Coast Guard is operating shall promulgate and enforce regulations specified in paragraph (2) of this subsection and such other regulations as he deems necessary concerning the docu- mentation, design, construction, alteration, equipment, maintenance, repair, inspection, cer- tification, and manning of ocean thermal energy conversion facilities and plantships. In addition to other requirements prescribed under those regulations, the Secretary of the department in which the Coast Guard is operating may require compliance with those vessel documentation, in- spection, and manning laws which he determines to be appropriate. (2) Within 1 year after August 3, 1980, the Sec- retary of the department in which the Coast Guard is operating shall promulgate regulations under paragraph (1) of this subsection which re- quire that any ocean thermal energy conversion facility or plantship— (A) be documented; (B) comply with minimum standards of de- sign, construction, alteration, and repair; and (C) be manned or crewed by United States citizens or aliens lawfully admitted to the United States for permanent residence, un- less— (i) there is not a sufficient number of United States citizens, or aliens lawfully ad- mitted to the United States for permanent residence, qualified and available for such work, or (ii) the President makes a specific finding, with respect to the particular vessel, plat- form, or moored, fixed or standing structure, that application of this requirement would not be consistent with the national interest. (3) For the purposes of the documentation laws, for which compliance is required under paragraph (1) of this subsection, ocean thermal energy conversion facilities and plantships shall be deemed to be vessels and, if documented, ves- sels of the United States for the purposes of the Ship Mortgage Act, 1920 (46 U.S.C. 911–984). (4) For the purposes of this subsection the term ‘‘ocean thermal energy conversion facil- ity’’ refers only to an ocean thermal energy con- version facility which has major components other than water intake or discharge pipes lo- cated seaward of the highwater mark 1 (f) Protection of navigation Subject to recognized principles of inter- national law, the Secretary of the department in which the Coast Guard is operating shall pro- mulgate and enforce such regulations as he deems necessary to protect navigation in the vi- cinity of a vessel engaged in the installation, re- pair, or maintenance of any submarine electric transmission cable or equipment, and to govern the markings and signals used by such a vessel. (Pub. L. 96–320, title I, § 108, Aug. 3, 1980, 94 Stat. 986; Pub. L. 98–623, title VI, § 602(a)(6), (7), (e)(1), (15), Nov. 8, 1984, 98 Stat. 3410–3412.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a), (b), and (d), 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. The Ship Mortgage Act, 1920, referred to in subsec. (e)(3), is section 30 of act June 5, 1920, ch. 250, 41 Stat. 1000, which was classified generally to chapter 25 (§ 911 et seq.) of former Title 46, Shipping, and was repealed by Pub. L. 100–710, title I, § 106(b)(2), Nov. 23, 1988, 102 Stat. 4752, and reenacted by section 102(c) thereof as chapters 301 and 313 of Title 46, Shipping. Chapter 301 of Title 46, consisting solely of section 30101 which de- fined, among other terms, ‘‘vessel of the United States’’, was subsequently repealed by Pub. L. 109–304, § 6(b), Oct. 6, 2006, 120 Stat. 1509. For a definition of Page 7684 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9119 ‘‘vessel of the United States’’ as that term applies to Title 46, see section 116 of Title 46. AMENDMENTS 1984—Subsec. (d)(1). Pub. L. 98–623, § 602(e)(1), sub- stituted ‘‘navigational safety’’ for ‘‘reorganizational safety’’. Subsec. (d)(3). Pub. L. 98–623, § 602(e)(15), added par. (3) by inserting text of former subsec. (b)(3) of section 9119 of this title. Subsec. (e)(2)(C)(ii). Pub. L. 98–623, § 602(a)(6), sub- stituted ‘‘moored, fixed or standing’’ for ‘‘moored or standing’’. Subsec. (e)(4). Pub. L. 98–623, § 602(a)(7), added par. (4). 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. § 9119. Prevention of interference with other uses of high seas (a) License conditions Each license shall include such conditions as may be necessary and appropriate to ensure that construction and operation of the ocean thermal energy conversion facility or plantship are con- ducted with reasonable regard for navigation, fishing, energy production, scientific research, or other uses of the high seas, either by citizens of the United States or by other nations in their exercise of the freedoms of the high seas as rec- ognized under the Convention of the High Seas and the general principles of international law. (b) Rules and regulations The Administrator shall promulgate regula- tions specifying under what conditions and in what circumstances the thermal plume of an ocean thermal energy conversion facility or plantship licensed under this chapter will be deemed— (1) to impinge on so as to degrade the ther- mal gradient used by another ocean thermal energy conversion facility or plantship, or (2) to impinge on so as to adversely affect the territorial sea or area of national resource jurisdiction, as recognized by the United States, of any other nation. Such regulations shall also provide for the Ad- ministrator to mediate or arbitrate any disputes among licensees regarding the extent to which the thermal plume of one licensee’s facility or plantship impinges on the operation of another licensee’s facility or plantship. (c) Coast Guard operations The Secretary of the department in which the Coast Guard is operating shall promulgate, after consultation with the Administrator, and shall enforce, regulations governing the movement and navigation of ocean thermal energy conver- sion plantships licensed under this chapter to ensure that the thermal plume of such an ocean thermal energy conversion plantship does not unreasonably impinge on so as to degrade the thermal gradient used by the operation of any other ocean thermal energy conversion plantship or facility except in case of force majeure or with the consent of owner of the other such plantship or facility, and to ensure that the thermal plume of such an ocean ther- mal energy conversion plantship does not im- pinge on so as to adversely affect the territorial sea or area of national resource jurisdiction, as recognized by the United States, of any other nation unless the Secretary of State has ap- proved such impingement after consultation with such nation. (Pub. L. 96–320, title I, § 109, Aug. 3, 1980, 94 Stat. 987; Pub. L. 98–623, title VI, § 602(e)(2), (15), (16), Nov. 8, 1984, 98 Stat. 3412.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (b) and (c), was in the original ‘‘this Act’’, meaning Pub. L. 96–320, Aug. 3, 1980, 94 Stat. 974, known as the Ocean Thermal En- ergy 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. AMENDMENTS 1984—Subsec. (b)(2). Pub. L. 98–623, § 602(e)(2), sub- stituted ‘‘national resource jurisdiction’’ for ‘‘natural resource jurisdiction’’. Subsec. (b)(3). Pub. L. 98–623, § 602(e)(15), struck out par. (3) which prohibited a licensee of an ocean thermal energy conversion facility or plantship under this chap- ter, except in the case of force majeure, from permit- ting foreign vessels to call at, or load or unload cargo at, or otherwise use such facility or plantship unless the foreign state involved had specifically agreed to recognize the jurisdiction of the United States over the vessel and its personnel while such vessel was located in the safety zone and the vessel owner or operator had designated an agent in the United States for receipt of service of process for legal claims or proceedings aris- ing from activities of the vessel or its personnel while located in such zone. See section 9118(d)(3) of this title. Subsec. (c). Pub. L. 98–623, § 602(e)(16), substituted ‘‘the thermal plume of such’’ for ‘‘the thermal plume such of’’ in second place appearing, and substituted ‘‘impingement’’ for ‘‘impingment’’. 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. § 9120. Monitoring of licensees’ activities Each license shall require the licensee— (1) to allow the Administrator to place ap- propriate Federal officers or employees in or aboard the ocean thermal energy conversion facility or plantship to which the license ap- plies, at such times and to such extent as the Administrator deems reasonable and nec- essary to assess compliance with any condi-