
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC9112]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
               CHAPTER 99--OCEAN THERMAL ENERGY CONVERSION
 
 SUBCHAPTER I--REGULATION OF OCEAN THERMAL ENERGY CONVERSION FACILITIES 
                             AND PLANTSHIPS
 
Sec. 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 
subsection (a) thereof. Such regulations shall pertain to, but need not 
be limited to, application 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, consistent with the 
purposes and provisions of this chapter, to amend or rescind any such 
regulation. 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 
operating may, if he determines it to be necessary, prescribe 
regulations consistent with the purposes of this chapter, relating to 
those activities in site evaluation and preconstruction testing at 
potential ocean thermal energy conversion facility or plantship 
locations that may (1) adversely affect the environment; (2) interfere 
with other reasonable uses of the high seas or with authorized 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 undertaken after the effective 
date of such regulations except in accordance therewith.

(c) Expertise or statutory responsibility descriptions

    Not later than 60 days after August 3, 1980, the Secretary of 
Energy, the Administrator of the Environmental Protection Agency, the 
Secretary of the department in which the Coast Guard is operating, the 
Secretary of the Interior, 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 statutory responsibilities 
pursuant to this chapter or any other Federal law.

(d) Application

    (1) Within 21 days after the receipt of an application, 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 determination, 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 contained 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 financial, technical, and 
other information as the Administrator determines by regulation to be 
necessary or appropriate to process the license pursuant to section 9111 
of this title.

(e) Area description; additional license applications

    (1) At the time notice of an application for an ocean thermal energy 
conversion facility is published pursuant to subsection (d) of this 
section, the Administrator shall publish a description in the Federal 
Register of an application area encompassing 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 thermal 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 ownership, 
construction, and operation of an ocean thermal energy conversion 
facility within the designated application area. Any person intending to 
file such an application shall submit a notice of intent to file an 
application to the Administrator not later than 60 days after the 
publication of notice pursuant to subsection (d) of this section, and 
shall submit the completed application no later than 90 days after 
publication of such notice. The Administrator shall publish notice of 
any such application received in accordance with subsection (d) of this 
section. No application for a license for the ownership, construction, 
and operation of an ocean thermal energy 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, 
construction, and operation of an ocean thermal energy conversion 
facility or plantship, except for authorizations required by 
documentation, inspection, certification, construction, and manning laws 
and regulations administered by the Secretary 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 forward 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 recommendation as to 
conditions and for such other action as may be required by law. Each 
agency or department involved shall review the application and, based 
upon legal considerations within its area of responsibility, recommend 
to the Administrator the approval or disapproval of the application not 
later than 45 days after public hearings 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 application does not comply with any law or 
regulation within its area of responsibility and shall notify the 
Administrator of the manner in which the application may be amended or 
the license conditioned 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 renewed 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 
facility is proposed to be directly connected by pipeline or electric 
transmission cable. Any interested person may present relevant material 
at any such hearing. After the hearings required by this subsection are 
concluded, if the Administrator 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 developed in any such adjudicatory hearing 
shall be part of the basis for the Administrator's decision to approve 
or deny a license. Hearings held pursuant to this subsection shall be 
consolidated insofar as practicable with hearings held by other 
agencies. All public hearings on all applications with respect to 
facilities for any designated 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 
section. All public hearings on applications with respect 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 section.

(h) Administrative fee

    The Administrator shall not take final action on any application 
unless the applicant has paid to the Administrator a reasonable 
administrative fee, which shall be deposited into miscellaneous receipts 
of the Treasury. The amount of the fee imposed by the Administrator on 
any applicant shall reflect the reasonable administrative costs incurred 
by the National Oceanic and Atmospheric Administration in reviewing and 
processing the application.

(i) Approval or denial of application; applications for same area; 
        factors determinative of facility selection

    (1) The Administrator shall approve or deny any timely filed 
application with respect to a facility for a designated application area 
submitted in accordance with the provision of this chapter not later 
than 90 days after public hearings on proposed licenses for that area 
are concluded pursuant to subsection (g) of this section. The 
Administrator shall approve or deny an application for a license for 
ownership, construction, 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 
pursuant to subsection (g) of this section.
    (2) In the event more than one application for a license for 
ownership, construction, and operation of an ocean thermal energy 
conversion facility is submitted pursuant to this chapter for the same 
designated application area, the Administrator, unless one or a specific 
combination of the proposed facilities clearly best serves the national 
interest, shall make decisions on license applications in the order in 
which they were submitted to him.
    (3) In determining whether any one or a specific combination of the 
proposed ocean thermal energy conversion facilities clearly best serves 
the national interest, the Administrator, in consultation 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 installing the largest capacity 
    practicable in each application area;
        (B) the amount of net energy impact of each of the proposed 
    ocean thermal energy conversion facilities;
        (C) the degree to which the proposed ocean thermal energy 
    conversion facilities will affect the environment;
        (D) any significant differences between anticipated dates and 
    commencement of operation 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 consumer.

(Pub. L. 96-320, title I, Sec. 102, Aug. 3, 1980, 94 Stat. 979; Pub. L. 
98-623, title VI, Sec. 602(f), Nov. 8, 1984, 98 Stat. 3412.)


                               Amendments

    1984--Subsec. (h). Pub. L. 98-623 substituted ``The Administrator 
shall not take final action on any application unless the applicant has 
paid to the Administrator a reasonable administrative fee'' for ``Each 
person applying 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 
National Oceanic and Atmospheric Administration'' for ``shall be 
established by regulation by the Administrator, and shall reflect the 
reasonable administrative costs incurred''.

                  Section Referred to in Other Sections

    This section is referred to in sections 9115, 9117, 9118 of this 
title.
