[Federal Register Volume 62, Number 174 (Tuesday, September 9, 1997)]
[Proposed Rules]
[Pages 47388-47393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23727]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 911

[Docket No. 970725178-7178-01]


Policies and Procedures Regarding Use of the NOAA Space-Based 
Data Collection Systems

AGENCY: National Oceanic and Atmospheric Administration, Department of 
Commerce.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) 
proposes regulations revising its policies and procedures for 
authorizing the use of its space-based Data Collection Systems which 
operate on NOAA's Geostationary Operational Environmental Satellites 
(GOES) and Polar-orbiting Operational Environmental Satellites (POES). 
These proposed regulations revise the current policy on the use of the 
GOES Data Collection System (DCS), and formalize a new policy for the 
use of the Argos Data Collection and Location System (Argos DCS) which 
flies on the POES. The regulations are intended to harmonize, as much 
as practicable, the system use policies for the two systems which in 
the past have been disparate. The fundamental principle underlying 
these regulations is that the Government will not allow its space-based 
data collection systems to be used where there are commercial services 
available that fulfill users' requirements.

DATES: Comments must be received by November 10, 1997.

ADDRESSES: Comments should be sent to Mr. Dane Clark, NOAA National 
Environmental Satellite, Data, and Information Service, Direct Services 
Division (E/SP3), 4700 Silver Hill Road, Stop 9909, Room 0158, 
Washington, D.C. 20233-9909.

FOR FURTHER INFORMATION CONTACT: Dane Clark at (301) 457-5678, e-mail: 
[email protected] or Kira Alvarez at (301) 713-0053, e-mail: 
Kira.A[email protected].

SUPPLEMENTARY INFORMATION: NOAA operates environmental data collection 
systems on its GOES and on its POES.
    The GOES DCS consists of: U.S. Government instruments on NOAA 
geostationary satellites; user Data Collection Platforms (DCP); data 
receipt and data dissemination systems. With the exception of the DCP, 
which are managed by the individual users, the GOES DCS is managed by 
NOAA. The

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data collection system on the POES is provided through a cooperative 
program with the Centre National d'Etudes Spatiales (CNES), the French 
national space agency. This system, which is known as the Argos Data 
Collection and Location System (Argos DCS), is managed by NOAA and CNES 
jointly and consists of: Instruments provided by CNES, which are flown 
aboard NOAA polar-orbiting satellites; user platform transmitter 
terminals; and global data receipt and data processing centers. Argos 
instruments are also scheduled to fly on Japanese and European polar-
orbiting satellites.
    Both the GOES DCS and the Argos DCS are operated to support 
environmental applications, e.g., meteorology, oceanography, hydrology, 
ecology, and remote sensing of Earth resources. In addition, the Argos 
DCS currently supports applications related to protection of the 
environment, e.g., hazardous material tracking, fishing vessel tracking 
for treaty enforcement, animal tracking, and oil and gas pipeline 
monitoring to prevent leakage. Presently, the majority of users of 
these systems are government agencies and researchers and, in fact, 
much of the data collected by both the GOES DCS and the Argos DCS are 
provided to the World Meteorological Organization via the Global 
Telecommunications System for inclusion in the World Weather Watch 
Program.
    The GOES DCS was established in 1974 to obtain data from remote 
locations which were required for the effective management of programs 
by the NOAA. Given that the capacity of this system could more than 
provide for all of NOAA's requirements, NOAA, through its regulations, 
currently in effect, made the excess capacity of the GOES DCS available 
to non-NOAA users (46 F.R. 48634, as amended at 51 F.R. 3465). These 
non-NOAA users include Federal and state agencies or local governments, 
as well as private persons and firms and foreign government agencies 
whose use of the system supports a program of a U.S. agency.
    While no similar regulations were published concerning the Argos 
DCS, in March 1992, NOAA made a small portion, i.e., less than five 
percent of system capacity, available for non-environmental use. This 
policy was announced in the Commerce Business Daily on March 2, 1992, 
and was consistent with the U.S. Commercial Space Guidelines of 1991 
which encouraged government agencies to promote commercial entities' 
access to excess U.S. space-based assets in order to facilitate the 
growth of the emerging U.S. commercial space industry. This policy of 
allowing the non-environmental use of up to five percent of the 
system's capacity successfully allowed commercial developers of space-
based data collection systems to access an operational space-based 
system to help develop, but not implement, their nascent services.
    In 1996, NOAA recognized that a commercial industry was starting to 
emerge in the area of data collection and location services (e.g., 
Mobile Space Services). Guided by the U.S. Government's long-standing 
policy against competing with the private sector, NOAA in October 1996 
(61 Fed. Reg. 52775) announced that it would no longer promote the use 
of the Argos DCS for commercial non-environmental applications.
    NOAA, moreover, has been eager to explore new opportunities for 
meeting mission requirements that are presented by the development of 
private space-based data collection systems. To explore these 
opportunities, NOAA initiated a dialogue between users of the systems 
and both public and private sector service providers by hosting a 
public meeting in December 1996. This meeting brought together more 
than 100 individuals representing current and planned space-based data 
collection service providers and users to present, discuss and document 
pertinent information necessary to reevaluate and reexamine government 
practice and policy.
    As demonstrated at the public meeting, there are operational and 
soon-to-be operational commercial data collection systems. However, the 
government users of the current NOAA-provided systems require a 
demonstrated operational capability from the private sector service 
providers before contemplating a change away from these government-
provided systems. Based on the presentations, both oral and written, 
made at the public meeting, the commercial providers are currently 
unable to provide such a capability to the vast majority of government 
users. Consequently, there is still a need for the government to 
provide a data collection system for government use until such a time 
as the government's requirements can be met by the commercial sector. 
However, given the evolving state of the commercial industry, 
government users must take into account the progress and development of 
these commercial systems. As a result, any new system use policy should 
be focused on meeting the requirements of the government users, while 
also encouraging them to canvass the commercial marketplace on a 
periodic basis.
    The participants expressed interest in the issuance of new 
consolidated regulations that clarify the system use policies for the 
Argos DCS and the GOES DCS. The participants indicated that new 
regulations establishing a clear set of criteria for allowing access to 
the government systems would accord them the predictability and 
transparency necessary to make rational business decisions.

Major Revisions

    These proposed regulations would revise the existing regulations to 
include the Argos DCS under the regulatory regime that previously only 
governed the GOES DCS. To the greatest extent possible, the proposed 
regulations would treat the two systems the same. However, due to the 
distinct nature of each system and its uses, it was not possible to 
harmonize every aspect of system regulation. In particular, the system 
priorities are separate and distinct for the two systems. Also, the 
authorized users and uses are different. For both systems an important 
prerequisite in reviewing applications for use is that there be no 
commercial space-based services available which meet the users' 
requirements in terms of satellite coverage, accuracy, data throughput, 
platform power consumption, size and weight, service continuity and 
reliability, platform compatibility and, in the case of government 
agencies, cost-effectiveness.
    The GOES DCS can only be used for environmental purposes while the 
Argos DCS can be used for environmental and some very limited non-
environmental purposes. The non-environmental use of the Argos system 
is primarily authorized for government users, for such applications as 
humanitarian cargo tracking, or for national security purposes. Non-
governmental use of the Argos system would be curtailed, and a 
prerequisite that there be a government interest in the collection of 
the data would be added. This prerequisite is similar, but not the 
same, as the current GOES sponsorship requirement. In addition to 
government users only non-profit users may be allowed to use the Argos 
DCS for non-environmental uses, except in cases where there is a 
significant possibility of the loss of life. However, at no time will 
non-environmental use of the Argos DCS exceed five percent of the 
system's total use. This is a reduction from current practice which 
allows up to five percent of the system's capacity to be used for non-

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environmental data collection. Tying the upper limit for non-
environmental use of the system to a percentage of actual system use 
rather than `system capacity' substantially reduces the allowance for 
such use of the system. The term of system use agreements would has be 
shortened: For use of the GOES system, the term would be reduced from 
10 years to 5 years; for use of the Argos System, the term would be 
reduced from a maximum of 5 years to a maximum of 3 years. This would 
be done to ensure that users will periodically canvass the marketplace 
to determine whether commercial services have developed the 
capabilities to meet their requirements. The chart in Annex 1 to this 
proposed regulation maps out the system use policy for the Argos DCS 
and has been included to help users understand these regulations.
    Another major revision to the existing regulations is that the 
former complicated proprietary information section would be eliminated. 
Protection of proprietary information would be in accordance with the 
Freedom of Information Act 5 U.S.C. Sec. 552, and the Departmental 
procedures for compliance with that statute (see 15 CFR 4). The 
existing provisions were promulgated in 1981 when the GOES DCS was 
first opened up to private users. At the time, it was anticipated that 
these private users might be transmitting proprietary data to which 
they would not want their competitors to have access. However, these 
procedures were rarely used. NOAA believes that adequate protection for 
proprietary information is contained in the Freedom of Information Act.
    As a result of revising the GOES DCS regulations to encompass use 
of the Argos DCS, a definition section was added for the purpose of 
clarity. This section defines most of the relevant terms used in the 
regulations, such as government user, non-profit user, platform user, 
and government interest.

Classification

A. Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    This proposed rule establishes a process intended to promote the 
development of the industry while at the same time minimizing, as much 
as practicable, any adverse impact on any entity, large or small, which 
may seek to operate data collection platforms. Accordingly, the 
Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce has certified to the Chief Counsel for Advocacy 
of the Small Business Administration that the proposed rule, if 
adopted, would not have a significant economic impact on a substantial 
number of small entities.

B. Paperwork Reduction Act of 1980 (44 U.S.C. 35)

    This proposed rule contains collection-of-information requirements 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). The proposed rule 
revises collection-of-information requirements that were previously 
approved by the OMB under control number 0648-0157. Public reporting 
burden for these collections of information is estimated to average 72 
hours per response, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Comments are invited on: (a) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information shall have practical 
utility; (b) the accuracy of the agency's estimate of the burden of the 
proposed collection of information; (c) ways to enhance the quality, 
utility, and clarity of the information to be collected; and (d) ways 
to minimize the burden of the collection of information on respondents, 
including through the use of automated collection techniques or other 
forms of information technology. Send comments regarding this burden 
estimate or any other aspect of this collection of information to Dane 
Clark, NOAA, National Environmental Satellite, Data, and Information 
Service, Direct Services Division (E/SP3), 4700 Silver Hill Road, Stop 
9909, Room 0158, Washington, D.C. 20223-9909 and to OMB at the Office 
of Information and Regulatory Affairs, Office of Management and Budget, 
Washington, D.C. 20503 (Attention: NOAA Desk Officer). Notwithstanding 
any other provision of the law, no person is required to respond to, 
nor shall any person be subject to 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.

C. National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    Publication of the proposed regulations does not constitute a major 
Federal action significantly affecting the quality of the human 
environment. Therefore, an environmental impact statement is not 
required.

List of Subjects in 15 CFR Part 911

    Scientific equipment, Space transportation and exploration.

    Dated: September 3, 1997.
Robert S. Winokur,
Assistant Administrator.

    Accordingly, for the reasons set forth above Part 911 of Title 15 
of the Code of Federal Regulations is proposed to be revised to read as 
follows:

PART 911--POLICIES AND PROCEDURES CONCERNING USE OF THE NOAA SPACE-
BASED DATA COLLECTION SYSTEMS

Sec.
911.1  Purpose.
911.2  Scope.
911.3  Definitions.
911.4  Use of the NOAA Data Collection Systems.
911.5  NOAA Data Collection Systems Use Agreements.
911.6  Treatment of Data.
911.7  Continuation of the NOAA Data Collection Systems.
911.8  Technical Requirements.

Appendix A to Part 911--Argus System Use Policy Diagram

    Authority: 15 U.S.C. 313, 49 U.S.C. 44720; 15 U.S.C. 1525; 7 
U.S.C. 450b; 5 U.S.C. 552.


Sec. 911.1  Purpose.

    These regulations set forth the procedural, informational and 
technical requirements to use the NOAA Data Collection Systems. In 
addition, they establish the criteria NOAA will employ when making 
determinations as to whether to authorize the use of its space-based 
data collection systems. The regulations are intended to facilitate the 
collection of environmental data as well as other such data which the 
Government is interested in collecting, while at the same time not 
disadvantaging the development of the commercial space-based services 
in this sector. Obtaining a system use agreement to operate data 
collection platforms pursuant to these regulations does not affect 
related licensing requirements of other Federal agencies such as the 
Federal Communications Commission.


Sec. 911.2  Scope.

    (a) These regulations apply to any person subject to the 
jurisdiction or control of the United States who operates or proposes 
to operate data collection platforms to be used with the NOAA data 
collection systems either directly or through an affiliate or 
subsidiary. For the purposes of these regulations a person is subject 
to the jurisdiction or control of the United States if such person is:

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    (1) An individual who is a United States citizen; or
    (2) A corporation, partnership, association, or other entity 
organized or existing under the laws of any state, territory, or 
possession of the United States.
    (b) These regulations apply to all existing GOES and Argos DCS 
users as well as all future applications for DCS use.


Sec. 911.3  Definitions.

    For purposes of this part:
    Approving authority means NOAA for the GOES DCS; and it means the 
Argos Participating Agencies, via the Argos Operations Committee, for 
the Argos DCS.
    Argos DCS means the system which collects data from fixed and 
moving platforms and provides platform location data. This system 
consists of platforms, the Argos French instrument on POES (and planned 
to fly on-board the ADEOS II Japanese spacecraft and the EUMETSAT METOP 
spacecraft); a ground processing system; and telemetry ground stations.
    Argos participating agencies are a combination of joint effort 
between NOAA; the Centre National d'Etudes Spatiales (CNES) of France; 
the National Space Development Agency (NASDA) of Japan; and the 
European Organization for the Exploitation of Meteorological Satellites 
(EUMETSAT).
    Assistant Administrator means the Assistant Administrator for 
Satellite and Information Services or his/her designee.
    Environmental data means environmental measurement data for the 
purpose of using of the GOES DCS; and it means environmental 
measurement and environmental protection data for the purpose of using 
the Argos DCS.
    Environmental measurement data means data that relate to the 
characteristics of the Earth and its natural phenomena by helping to 
better understand, evaluate, or monitor its natural resources.
    Environmental protection data means data that relate to the 
characteristics of the Earth and its environment (including its 
ecosystems and the species which inhabit them) by helping to protect 
against any unreasonable adverse effects thereto.
    Episodic use means the use of the system for short events where the 
possibility of loss of life is high.
    Experimental use means the use of the GOES DCS by equipment 
manufacturers for the purposes of testing and assessing new equipment 
that is to be used in conjunction with the GOES DCS.
    Government interest means relating to the mission of a U.S. Federal 
agency or the mission of one of the Argos participating agencies, or 
also, in the case of the GOES DCS, a state or local government.
    Government user means agencies of Federal, state, or local 
governments or any of those agencies' contractors or grantees, so long 
as the contractor is using the data collected by the NOAA DCS to 
fulfill its contractual obligations to the Government agency or in the 
case of a grantee that these data are being used in accordance with the 
statement of work for the award.
    NOAA data collection systems means the GOES and Argos space-based 
data collection systems.
    Non-profit user means a not-for-profit academic, research, or other 
non-governmental organization which is using these data for education 
and/or scientific, non-commercial purposes.
    Operational use means the use of data in a situation where the 
utility of the data is significantly reduced if not collected or 
delivered in a specific time window. This includes situations where 
extensive preparation work is in place and a delay in acquisition of 
data would jeopardize the project.
    User means the entity and/or organization which owns or operates 
user platforms for the purpose of collecting and transmitting data 
through the NOAA DCS.
    User platform means devices, designed in accordance with the 
specifications delineated and approved by the Approving Authority, used 
for the in-situ collection and subsequent transmission of data via the 
NOAA data collection systems. Those devices which are used in 
conjunction with the GOES DCS are referred to as DCP and those which 
are used in conjunction with the Argos DCS are referred to as Platform 
Transmitter Terminals (PTT). For purposes of these regulations, the 
terms ``user platform,'' ``DCP'' and ``PTT'' are interchangeable.
    User requirement means the requirement expressed and explained in 
the System Use Agreement.


Sec. 911.4  Use of the NOAA Data Collection Systems.

    (a) Use of the NOAA Data Collection Systems will only be authorized 
in accordance with the conditions and requirements set forth in 
paragraphs (b), (c), (d), (e), and (f) of this section.
    (b) NOAA Data Collection Systems will only be authorized where 
there are no commercial services available that meet the user's 
requirements.
    (c) (1) Except as provided in paragraphs (2), (3) and (4) of this 
section, NOAA DCS shall only be used for the collection of 
environmental data.
    (2) Except as provided in paragraph (c)(3) of this section, non-
environmental use of the Argos DCS is only authorized for government 
use and non-profit users where there is a government interest. Non-
environmental use of the system shall not exceed five percent of the 
system's total use.
    (3) Episodic, non-environmental use of the Argos DCS may also be 
authorized in specific instances when there is a significant 
possibility for loss of life. Such use shall be closely monitored.
    (4) Experimental use of the GOES DCS is only authorized for 
manufacturers of GOES DCS compatible equipment, such as platforms, that 
require access to the system in order to test and assess the 
compatibility of their new products.
    (d) Non-governmental use of the NOAA DCS will only be authorized 
where there is a government interest in the collection and/or receipt 
of the data.
    (e) Because of capacity limitations on the GOES DCS, system 
applicants will be admitted to use the GOES system in accordance with 
the following priority:
    (1) NOAA programs or users whose data are required for 
implementation of NOAA programs, as determined by the Assistant 
Administrator, will be accorded first priority.
    (2) Users whose data are desired to support NOAA programs will be 
accorded second priority.
    (3) Users whose data and/or use of the GOES DCS will further a 
program of an agency or department of the U.S. Government, other than 
NOAA, will be accorded third priority.
    (4) Users whose data are required by a state or local government of 
the United States will be accorded fourth priority.
    (5) Experimental users of the system will be accorded fifth 
priority.
    (6) No other usage will be authorized for the GOES DCS.
    (f) In the event that Argos DCS capacity limitations require that 
priority determinations be made, priority will be given to those 
platforms that provide environmental data of broad international 
interest, especially of an operational nature, and to those requiring 
the unique capabilities of the Argos DCS, such as platform location or 
polar coverage.


Sec. 911.5  NOAA Data Collection Systems Use Agreements.

    (a) In order to use a NOAA DCS, each user must have an agreement 
with the approving authority for that system.
    (b) These agreements will address, but will not be limited to, the 
following matters:
    (1) The period of time the agreement is valid and procedures for 
its termination,

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    (2) The authorized use(s), and its priorities for use,
    (3) The extent of the availability of commercial services which 
meet the user's requirements and the reasons for choosing the 
Government system,
    (4) Any applicable government interest in the data,
    (5) Required equipment standards,
    (6) Standards of operation,
    (7) Conformance with applicable ITU and FCC agreements and 
regulations,
    (8) Reporting time and frequencies,
    (9) data formats,
    (10) Data delivery systems and schedules, and
    (11) User-borne costs.
    (c) The Director, Office of Satellite Data Processing and 
Distribution for the National Environmental Satellite, Data, and 
Information Service shall evaluate user requests and conclude 
agreements for use of the NOAA Data Collection systems.
    (d) (1) Agreements for the collection via the Argos DCS of 
environmental data by government agencies or non-profit institutions 
shall be valid for 3 years from the date of initial in-situ deployment 
of the platforms, and may be renewed.
    (2) Agreements for the collection of environmental data via the 
Argos DCS by for-profit users shall be valid for 1 year from the date 
of initial in-situ deployment of the platforms, and may be renewed 
annually thereafter but only for so long as there exists a governmental 
interest in the receipt of these data.
    (3) Agreements for the collection of non-environmental data via the 
Argos DCS by government agencies or nonprofit institutions shall be 
valid for 1 year from the date of initial in-situ deployment of the 
platforms and may be renewed annually.
    (4) Agreements for episodic collection of non-environmental data 
via the Argos DCS under 911.4(c)(3) shall be of short, finite duration 
not to exceed 1 year without exception, and usually shall not exceed 6 
months. These agreements shall be closely monitored and shall not be 
renewed.
    (e) (1) Agreements for the collection of data by the GOES DCS shall 
be valid for 5 years from the date of initial in-situ deployment, and 
may be renewed.
    (2) Agreements for the experimental use of the GOES DCS by 
equipment manufacturers shall be valid for 2 years from the date of 
initial in-situ deployment, and may be renewed.


Sec. 911.6  Treatment of Data.

    (a) All NOAA DCS users must agree to permit NOAA and other agencies 
of the U.S. Government the full, open and timely use of all data 
collected from their platforms. Any proprietary data will be protected 
in accordance with applicable laws.


Sec. 911.7  Continuation of the NOAA Data Collection Systems.

    (a) NOAA expects to continue to operate satellite-based data 
collection systems on its geostationary and polar-orbiting satellites, 
subject to the availability of future appropriations.
    (b) As use of the system in support of NOAA programs increases, it 
eventually may be necessary to further restrict system usage by other 
users. If such restrictions on use become necessary, or in the event 
that NOAA discontinues operation of GOES and/or POES, NOAA will 
provide, to the maximum extent practicable, advance notice to the 
affected users.
    (c) NOAA will not be responsible for any losses resulting from the 
nonavailability of the NOAA DCS.


Sec. 911.8  Technical Requirements.

    (a) All platform operators of the NOAA DCS must use a data 
collection platform radio set whose technical and design 
characteristics conform to applicable specifications and regulations.
    (b) All platform operators are responsible for all costs associated 
with the procurement and operation of the platforms, and for the 
acquisition of data from those platforms either directly from the 
satellite or from the applicable data processing center.

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Appendix A to Part 911--Argos System Use Policy Diagram
[GRAPHIC] [TIFF OMITTED] TP09SE97.002

[FR Doc. 97-23727 Filed 9-8-97; 8:45 am]
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