[Federal Register Volume 63, Number 87 (Wednesday, May 6, 1998)]
[Rules and Regulations]
[Pages 24917-24927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11970]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 911

[Docket No. 970725178-8087-02]
RIN 0648-AK04


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

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

ACTION: Final rule.

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

DATES: Effective June 5, 1998.

ADDRESSES: Send comments on the collection information to Dane Clark, 
NOAA, National Environmental Satellite, Data, and Information Service, 
Direct Services Division (E/SP3), 4700 Silver Hill Road, Stop 9909, 
Room 3320,

[[Page 24918]]

Washington, DC 20223-9909, and to the Office of Management and Budget 
(OMB) at the Office of Information and Regulatory Affairs, OMB, 
Washington, DC 20503 (Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT:
Dane Clark at (301) 457-5681, e-mail: [email protected]; or Kira 
Alvarez at (301) 713-0053, e-mail: Kira.A[email protected].

SUPPLEMENTARY INFORMATION: For general background on NOAA's Data 
Collection Systems (Argos DCS and GOES DCS), please refer to the notice 
of proposed rulemaking published in the Federal Register on September 
9, 1997, at 62 FR 47388.
    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 8, 
1996, (61 FR 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 DCS. To explore these opportunities, NOAA initiated a 
dialogue among 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 DCS. However, the government users of 
the current NOAA-provided systems require an established operational 
capability that meets users' requirements from the private sector 
service providers before contemplating a change away from these 
government-provided systems. Based on the representations, 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 space-based 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 and that build in the incentive to 
investigate the opportunities available from the private sector. 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.
    On September 9, 1997, (62 FR 47388), NOAA published a proposed rule 
in the Federal Register. Comments on the proposed rule were invited 
through November 10, 1997. A total of eight letters of comment on the 
proposed rule were received.

Response to Comments

    Comment 1: The statements in the notice of proposed rulemaking that 
commercial providers are currently unable to provide a demonstrated 
operational capability to the vast majority of government users and 
that consequently, there is still a need for the Government to provide 
a DCS for government use until such time as the Government's 
requirements can be met by the commercial sector, are categorically 
incorrect.
    Response: NOAA has determined that there is still a need for the 
Government to provide a space-based DCS. This determination was made 
with the consultation of a U.S. Government (USG) users group, which 
advised NOAA on the government requirements for space-based DCS. These 
government agencies determined their own current and future 
requirements and then conveyed the same to NOAA. NOAA and the user 
group assessed the commercial alternatives available and compared them 
with the existing government services and determined that no commercial 
service currently available had the requisite demonstrated operational 
capability to meet all of the USG user requirements. Nonetheless, this 
rulemaking serves notice that this situation will not be indefinite and 
viable commercial space-based alternatives may eventually obviate the 
need for NOAA to operate its own space-based DCS.
    Comment 2: The 1991 U.S. Space Policy encouraging U.S. agencies to 
promote access to excess U.S. space-based assets is ``outdated and no 
longer applicable.''
    Response: NOAA agrees, and in this regard, announced in the Federal 
Register on October 8, 1996, (61 FR 52775), that it was no longer 
promoting commercial use of the Argos System.
    Comment 3: A major point of contention is the degree to which 
particular applications are conducted for environmental protection 
versus economic considerations. NOAA must recognize that certain 
applications may serve both purposes. What is the definition of cost-
effectiveness? Full cost accounting should be used, including the full 
cost of providing the NOAA DCS service. NOAA should not use user 
switching costs in this assessment.
    Response: Cost-effectiveness is only a valid criterion to be 
considered in the case of government agencies. Furthermore, it is the 
individual agency that determines what is cost-effective for their 
particular agency, as a user of the system. It is not a valid 
consideration for non-governmental entities. Moreover, for non-
governmental entities, not only must the use be environmental, but 
there is the additional criterion that there must be government 
interest in the collection of the data.
    Comment 4: In section 911.1, Purpose, change the italicized 
language: ``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.'' The following is proposed as a replacement: ``The regulations 
are intended to facilitate the collection of environmental data as well 
as other such data which the Government is interested in collecting, 
and to allow for the use of commercial space-based services where 
possible while precluding all direct or indirect government competition 
with such services.''
    Response: The proposed change is inaccurate because it implies that 
NOAA has the authority to disallow the use of commercial services by 
other USG agencies. Moreover, NOAA has not taken any steps to 
discourage the use of commercial services. However, the language will 
be changed to clarify NOAA's position as follows:
    ``The regulations are intended to facilitate the collection of

[[Page 24919]]

environmental data as well as other such data which the Government is 
interested in collecting. In those instances where space-based 
commercial systems do not meet users' requirements, the intent is to 
not disadvantage the development of the commercial space-based services 
in this sector.''
    Comment 5: ``The revised regulations should explicitly state that 
all non-government users of government spectrum must be licensed by the 
Federal Communications Commission (FCC). This NOAA must include as an 
integral part of its review and approval process for Argos System use 
certification that the candidate user of Argos has met these 
requirements.''
    Response: While an explicit statement in the regulations that non-
government users subject to U.S. jurisdiction must be licensed by the 
FCC is appropriate, it would be inconsistent with Administration 
regulatory policy to include a certification requirement pertaining to 
FCC license procedures that essentially duplicates existing 
requirements. However, it should be noted that System Use Agreements 
will include an obligation that users must obtain authorization from 
the appropriate national agencies, in the case of the United States--
the FCC, to transmit on the assigned frequencies and to comply with all 
applicable national telecommunications laws and regulations.
    Comment 6: NOAA should set up a vetting process similar to the 
FCC's, which includes the publication at designated intervals, of a 
Request for Information in the Commerce Business Daily, that would 
include the details of user requests since the previous notice, and 
would allow for timely comment by commercial providers before the 
signing of any agreements.
    Response: Requiring the completion of such an administrative 
process before allowing access to the NOAA DCS would create an unfair 
burden on potential users and, in some cases would interfere with the 
ability of certain users to have timely access to data which may be 
mission critical. Under the USG's current regulatory reform program, 
any new regulatory burdens on the public must be kept to the minimum 
necessary to achieve the stated goal and this proposed administrative 
process would clearly be contrary to this policy.
    Comment 7: The scope of the regulations is too narrow and these 
regulations should be applicable globally. As a result, include in 
Sec. 911.2, Scope, the following language: ``regardless of whether an 
applicant is subject to the jurisdiction and control of the United 
States.''
    Response: This proposed statement overreaches the territorial 
jurisdiction of the United States, and as such is inappropriate. 
However, NOAA agrees with the observation that the Argos DCS is a 
global system which should be operated under a consistent and uniform 
set of globally applicable rules. As a result, the Argos Operations 
Committee has adopted these regulations as part of the governing rules 
for the system.
    Comment 8: Under which category of users would international 
government users fall?
    Response: International government users would fall under the 
definition of government users.
    Comment 9: ``Government Interest'' is defined too ambiguously.
    Response: By necessity, this definition is broad. It would be 
impractical to give the exhaustive list of the relevant missions of all 
government agencies that utilize these data for operational and 
research purposes.
    Comment 10: The definitions of ``Environmental Data,'' 
``Environmental Protection Data,'' and ``Environmental Measurement 
Data'' are too broad. In addition, the definitions of ``Environmental 
Measurement Data'' and ``Environmental Protection Data'' should include 
the following statement: ``It is recognized that in many cases, 
commercial services may be available that adequately address user 
requirements and that these user needs may be motivated by reasons in 
addition to environmental-related concerns. Instances of such cases 
will be viewed as non-environmental applications for the purposes of 
these regulations.''
    Response: These definitions accurately reflect the environmental 
stewardship mission requirements of the primary USG agencies for which 
these systems are operated. And because these systems are primarily 
operated for environmental purposes, these definitions serve as a 
primary justification for use of the system. However, we do understand 
the concerns expressed in the comment, and that is why NOAA also 
requires that, for non-governmental use of the system, the user show 
that there is a government interest in the collection of the data. We 
note, though, that the statement of policy proposed in the comment is 
inappropriate in the definition section of a regulation. Such a 
statement, moreover, concerns the use of the system for cost-effective 
purposes, and as we noted in comment 3 above, except in the case of 
government agencies, cost-effectiveness is not an appropriate 
consideration for potential users of the system. We feel that the 
operative sections of the regulations already take into account the 
concerns expressed in the commenter's proposed statement.
    Comment 11: It is unclear what types of events fall under the 
definition of Episodic Use. Please clarify with examples.
    Response: NOAA agrees, and as a result, examples of such uses have 
been added to the final rule. These examples include: Arctic 
expeditions and scientific campaigns into remote areas, which represent 
events in which there is a significant possibility for the loss of 
life.
    Comment 12: Who decides whether there are commercial services that 
meet the users' requirements? How will NOAA validate user requirements?
    Response: Users determine whether there are commercial space-based 
services that meet their program's requirements. Not only are the users 
asked to provide the reasons why they have determined that they need to 
use the Argos System, but they must also certify that there are no 
commercial space-based services which meet their requirements.
    Comment 13: Why was an explanation of the factors of the users' 
requirements that may not be met by commercial space-based services 
included in the preamble, but not in the actual proposed rule?
    Response: NOAA agrees that the factors should be included in the 
text of the rule; as a result, these factors have now been incorporated 
into Sec. 911.4(b).
    Comment 14: The reduction in non-environmental use of the system, 
while ``well intended, * * * fails to address the real issue that, in 
the majority of cases, non-environmental user requirements can be met 
by commercial providers.''
    Response: We reiterate the fact that the primary requirement for 
use of the system is that there be no commercial space-based services 
which meet the users' requirements. Only after a user has determined 
that fact, and certified to it, will NOAA apply the other criteria to 
determine if they are qualified to use the system. For non-
environmental use of the system there are only two instances where use 
of the system is allowed: (1) For episodic uses, where there is the 
significant possibility of loss of life, which is consonant with NOAA's 
(and all USG agencies' inherent) public safety mission(s); and (2) for 
government users and non-profit users where there is a governmental 
interest. For government users there may be instances where the use of 
commercial services is not

[[Page 24920]]

appropriate due to the sensitive nature of the applications (such as 
for national security or law enforcement purposes); however, this is a 
determination made by the individual agency, not NOAA.
    As we have stated previously, NOAA will monitor the commercial 
sector to determine whether they are developing and implementing the 
necessary capabilities. We encourage service providers to continue to 
interact with NOAA and keep us informed of their progress. We are 
committed to facilitating government-industry interface and dialogue. 
In fact we are already aware of several government agencies that are 
testing and using commercial space-based services.
    Comment 15: All agreements for non-governmental, non-environmental 
use should be terminated upon publication of a final rule and no new 
non-governmental, non-environmental use agreements should be signed 
from this point forward.
    Response: NOAA cannot arbitrarily terminate all non-governmental, 
non-environmental agreements upon publication of the final rule. 
However, we have stated previously that such agreements will not be 
renewed and will terminate upon expiration. We have also stated 
previously that no new non-governmental, non-environmental agreements 
will be approved, with the exception of those for episodic use, which 
are consonant with our public safety mission.
    Comment 16: Section 911.7(a) should be amended; the following 
language should be included at the end: ``However, the existence of 
viable commercial space-based alternatives may eventually obviate the 
need for NOAA to operate its own satellite-based DCS.''
    Response: NOAA agrees that it must convey a strong signal that it 
is determined not to compete with viable commercial providers of space-
based DCS services. NOAA has incorporated the suggested language, with 
a slight modification; Sec. 911.7(a) now reads: ``NOAA expects to 
continue to operate DCS on its geostationary and polar-orbiting 
satellites, subject to the availability of future appropriations. 
However, viable commercial space-based alternatives may eventually 
obviate the need for NOAA to operate its own space-based DCS.''
    Comment 17: What is the reasoning behind limiting non-environment 
users to 5 percent of the terminals in use for the Argos DCS. With the 
expected decline in users, the non-environment users will continually 
need to remove terminals from the system. What will be the selection 
process in removing those terminals (which users will be impacted)? the 
existing limit has never created a problem for the operation of the 
system.
    Response: NOAA established these systems to further its 
environmental stewardship responsibilities. Moreover, the radio 
spectrum frequencies within which these systems operate are allocated 
primarily for environmental use. Thus by strictly limiting the 
nonenvironmental use of the system to 5 percent of total system use, 
the integrity of the use of the allocated frequencies is maintained, 
while also accomplishing the additional goal of not competing unfairly 
with the private sector.
    In accordance with this rule, current non-governmental, non-
episodic, non-environmental agreements will not be renewed. Terminals 
operating under expired agreements should be deactivated at the end of 
the current agreement. Since any remaining non-environmental uses of 
the system will only be approved for one year terms, this will allow 
for an orderly decrease in the non-environmental use of the system.
    Comment 18: There is concern that the statement: ``The fundamental 
principle underlying these regulations is that the Government will not 
allow its space-based DCS to be used where there are commercial 
services available that fulfill the users' requirements'', indicates 
not only that users will have to convert to commercial services when/
where available, but also an eventual retreat by the Government from 
providing a data collection service without a definite discussion of 
how and when that would happen.
    Response: Government user requirements will continue to dictate 
which instruments fly on government assets. Moreover, it is 
inappropriate for the Government to compete unfairly with the private 
sector. At this point in time, NOAA, in consultation with government 
users, has determined that there are no commercial providers of space-
based services that can meet the government's needs, and so the 
Government will continue to operate its own systems. While this 
rulemaking serves notice that this situation will not be indefinite, it 
is impossible given the state of development in the commercial 
marketplace to determine with any accuracy when or how the full 
transition to the private sector will take place. When such a 
transition is warranted, NOAA will provide, to the maximum extent 
practicable, advance notice to the affected users to allow for an 
orderly transition.''
    Comment 19: We believe that canvassing the market every 3-5 years 
is not enough. Also, what level of diligence does this require?
    Response: NOAA has decreased the duration of the System Use 
Agreements in order to create a forcing function to make the users 
periodically reassess their requirements and their options for meeting 
them. This creates a dynamic process wherein applications and renewals 
have varying durations for 6 months to 5 years, and are received on a 
continuing basis. Hence, the canvassing of the commercial marketplace 
will take place on a continuing basis.
    For existing users of the system, the following outlines the 
schedule for transitioning to new system use agreements:
    1. Government and non-profit, environmental users of the Argos DCS 
shall be required to submit a new system use agreement within 3 years 
from the effective date of this rule or upon expiration of their 
current system use agreement, whichever occurs first;
    2. Government, non-profit, and non-government, environmental users 
of the GOES DCS shall be required to submit a new system use agreement 
within 5 years from the effective date of this rule, or upon expiration 
of their current system use agreement, whichever occurs first;
    3. Government and non-profit, non-environmental users of the Argos 
DCS shall be required to submit a new system use agreement within 1 
year from the effective date of this rule or upon expiration of their 
current system use agreement, whichever occurs first;
    4. Non-government, environmental users of the Argos DCS shall be 
required to submit a new system use agreement within 1 year from the 
effective date of this rule, or upon expiration of their current 
agreement, whichever comes first; and
    5. Non-government, non-environmental users of the Argos DCS will be 
required to submit new system use agreements within 1 year from the 
effective date of this rule, or upon expiration of their current 
agreement, whichever comes first.
    Please note, however, that submission of a new system use agreement 
does not imply acceptance of such an agreement, especially for non-
governmental, non-environmental uses.
    As to the level of diligence, NOAA requires a certification for 
each user that the use of the NOAA DCS is required because there are no 
commercial space-based services that meet its program requirements.

[[Page 24921]]

    Comment 20: There needs to be further detail provided on what the 
``platform compatibility'' factor is and how it is determined.
    Response: NOAA agrees that this term should be defined. The 
``platform compatibility'' factor addresses the compatibility of the 
platform with the space segment of the system and includes elements 
such as message length and composition, signal strength, as well as 
transmission protocol (e.g., continuous versus event driven).
    Comment 21: These proposed rules do not support the needs of small 
businesses, the commercialization of space, the needs of the 
environmental users and the Government's requirements to allow access 
to underutilized assets of the Government to non-governmental users.
    Response: As noted in the notice of proposed rulemaking, NOAA had 
previously made the excess capacity of its DCS available to non-NOAA 
users. This was consistent with the National Space Policy then in 
effect, which encouraged government agencies to promote commercial 
access to excess U.S.C. space-based assets in order to promote the 
growth of the emerging U.S. commercial space industry. However, by 
1996, NOAA recognized that a commercial industry was staring to emerge 
in the area of space-based data collection and location services. Given 
the U.S. Government's long-standing policy against competing with the 
private sector, NOAA undertook a reassessment of its role in this 
market sector. This reassessment eventually led to those new 
regulations.

Changes from the Proposed Rule

    For a description of the proposed rule, see 62 FR 47388. The 
following seven changes have been made to the text of the proposed rule 
in response to comments.
    In Sec. 911.1, language was added to clarify the intent of these 
regulations.
    The definition of ``episode use'' in Sec. 911.3, was clarified with 
further examples.
    The definition of ``government use'' in Sec. 911.3 was clarified, 
and now specifies that government approval is necessary in advance.
    The definition of ``government user'' in Sec. 911.3 was clarified 
to specify that international government users are included.
    A definition of ``platform compatibility'' was added to Sec. 911.3.
    Section 911.4(b)(2) was added, which lists the factors that help 
users determine when commercial space-based services meet their 
requirements, was included. This list was included in the preamble of 
the notice of proposed rulemaking, but not in the actual rule.
    A statement was added at the end of Sec. 911.&(a) which qualifies 
the first sentence and states that while NOAA expects to continue to 
operate a DCS, in the future, the existence of viable commercial space-
based systems may eventually obviate this need.

Additional Technical Changes to the Proposed Rule

    A definition of ``Director'' was added to Sec. 911.3, which defines 
the term as the Director of the Office of Satellite Data Processing and 
Distribution of the National Environmental Satellite, Data, and 
Information Service.
    The term ``space-based'' was included in Sec. 911.4(b) to modify 
the term ``commercial services'' to clarify the fact that NOAA will be 
looking at whether other space-based alternatives to the use of the 
NOAA DCS are available. This allows the comparison between systems to 
be a more accurate ``apples to apples'' comparison.
    The requirements of former Sec. 911.4(d) have now been incorporated 
into Sec. 911.4(c). These sections were rearranged after some 
consideration, because the new arrangement leads to a more logical flow 
and makes the regulatory scheme easier to understand.
    The section previously classified as Sec. 911.4(c)(4), and which is 
now classified as Sec. 911.4(c)(5), was revised to specify that the 
experimental use provisions applied to both NOAA DCS services. The name 
of this category was also changed from ``experimental use'' to 
``testing use'' to better reflect the nature of the use; this change 
was also made in Secs. 911.4(d)(5) and 911.5(e)(2).
    Section 911.5(a)(2) was added, which directs persons who are 
interested in using the NOAA DCS to contact the Director.
    A language change in Sec. 911.5(b)(3) reflects that it is not by 
choice, but rather by necessity that a user requires access to the NOAA 
DCS.
    Section 911.5(d)(5) was added; this is a conforming change that was 
necessary in order to reflect that the experimental use of the Argos 
System is also allowed. As a result, it was necessary to indicate the 
length of time of approval of agreements for this category of use of 
the system.
    Appendix B was added to map out the system use policy for the GOES 
DCS and has been included to help users understand how the regulations 
apply to that system.

Classification

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

    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce 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. No comments were received regarding this certification. 
As such, no final regulatory flexibility analysis has been prepared.

B. Paperwork Reduction Act of 1995 (35 U.S.C. 3500 et. seq.)

    This rule contains collection-of-information requirements subject 
to the Paperwork Reduction Act (PRA). The collection of this 
information has been approved by OMB Control Number 0648-0157.
    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.
    Public reporting burden for this collection of information is 
estimated to average 3 hours per GOES agreement and 30 minutes per 
Argos agreement, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Send comments regarding 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 3320, Washington, DC. 20233-9909, and to OMB at the Office of 
Information and Regulatory Affairs, Washington, DC 20503 (Attention: 
NOAA Desk Officer).

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

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

D. Executive Order 12866

    This rule has been determined to be not significant for purposes of 
E.O. 12866.

[[Page 24922]]

List of Subjects in 15 CFR part 911

    Scientific equipment, Space transportation and exploration.

    Dated: April 28, 1998.
Robert S. Winokur,
Assistant Administrator for Satellite and Information Services.

    Accordingly, for the reasons set forth above part 911 of Title 15 
of the Code of Federal Regulations is 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--Argos DCS Use Policy Diagram
Appendix B to Part 911--GOES DCS 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 for use of the NOAA Data Collection Systems 
(DCS). In addition, they establish the criteria NOAA will employ when 
making determinations as to whether to authorize the use of its space-
based DCS. The regulations are intended to facilitate the collection of 
environmental data as well as other such data which the Government is 
interested in collecting. In those instances where space-based 
commercial systems do not meet users' requirements, the intent is to 
not disadvantage 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 DCS 
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:
    (1) An individual who is a U.S. 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 Geostationary 
Operational Environmental Satellite (GOES) and Argos DCS users as well 
as all future applications for NOAA DCS use.


Sec. 911.3   Definitions.

    For purposes of this part:
    (a) Approving authority means NOAA for the GOES DCS; and it means 
the Argos Participating Agencies, via the Argos Operations Committee, 
for the Argos DCS.
    (b) 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 the Polar-
orbiting Operational Environmental Satellites (POES) and other 
international satellites; a ground processing system; and telemetry 
ground stations.
    (c) Argos participating agencies means those agencies of the United 
States and other countries that participate in the management of the 
Argos DCS.
    (d) Assistant Administrator means the Assistant Administrator for 
Satellite and Information Services, NOAA, or his/her designee.
    (e) Director means the Director of the Office of Satellite Data 
Processing and Distribution for the National Environmental Satellite, 
Data, and Information Service of NOAA.
    (f) Environmental data means environmental measurement data for the 
purpose of using the GOES DCS; and it means environmental measurement 
and environmental protection data for the purpose of using the Argos 
DCS.
    (g) 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.
    (h) 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.
    (i) Episodic use means the use of the system for short events where 
there is a significant possibility of loss of life, such as for Arctic 
expeditions or scientific campaigns into remote areas.
    (j) Government interest means that the use is determined in advance 
to be of interest to one or more governmental entities of the United 
States, France or, once they have become an Argos Participating Agency, 
Japan or a European Organization for the Exploitation of Meteorological 
Satellites (EUMETSAT) member state; or also, in the case of the GOES 
DCS, a state or local government.
    (k) Government user means agencies of international governmental 
organizations, national government or any subdivision thereof, 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.
    (l) NOAA DCS means the GOES and Argos space-based DCS.
    (m) 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.
    (n) Operational use means the use of data in a situation where the 
utility of the data are 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.
    (o) Platform compatibility means the compatibility of the platform 
with the space segment of the system, and includes elements such as 
message length and composition, signal strength, and transmission 
protocol (e.g., continuous versus event drive).
    (p) Testing use means the use of the NOAA DCS by manufacturers of 
platforms for use in conjunction with the NOAA DCS by manufacturers of 
platforms for use in conjunction with the NOAA DCS, for the limited 
purpose of testing and certifying the compatibility of new platforms 
with the technical requirements of the NOAA DCS.
    (q) 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.
    (r) 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 DCS. Those devices which are used in conjunction with the GOES DCS 
are

[[Page 24923]]

referred to as data collection platforms (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.
    (s) User requirement means the requirement expressed and explained 
in the System Use Agreement.


Sec. 811.4  Use of the NOAA Data Collection Systems.

    (a) Use of the NOAA DCS 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)(1) Use of the NOAA DCS will only be authorized where it is 
determined that there are no commercial space-based services available 
that meet the user's requirements.
    (2) A determination under paragraph (b)(1) of this section must be 
based on such factors as satellite coverage, accuracy, data throughput, 
platform power consumption, size and weight, service continuity and 
reliability, platform compatibility, system access mode, and, in the 
case of government agencies, cost-effectiveness.
    (c)(1) Except as provided in paragraphs (c)(2), (3), (4), and (5) 
of this section, NOAA DCS shall only be used for the collection of 
environmental data by governmental and/or non-profit users.
    (2) Non-governmental, environmental use of the NOAA DCS is only 
authorized where there is a Government interest in the collection and/
or receipt of the data.
    (3) Except as provided in paragraph (c)(4) 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.
    (4) Episodic 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.
    (5) Testing use of the NOAA DCS will only be authorized for 
manufacturers of NOAA DCS platforms, that require access to the system 
in order to test and certify prototype and production models.
    (d) 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) Testing users of the system will be accorded fifth priority.
    (6) No other usage will be authorized for the GOES DCS.
    (e) 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)(1) In order to use a NOAA DCS, each user must have an agreement 
with the approving authority for that system.
    (2) Persons interested in entering into a system use agreement 
should contact the Director.
    (b) These agreements will address, but may not be limited to, the 
following matters:
    (1) The period of time the agreement is valid and procedures for 
its termination,
    (2) The authorized use(s), and its priorities for use,
    (3) The extent of the availability of commercial space-based 
services which meet the user's requirements and the reasons for 
necessitating the use of 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 shall evaluate user requests and conclude 
agreements for use of the NOAA DCS.
    (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 for additional 3-year periods.
    (2) Agreements for the collection of environmental data, via the 
Argos DCS, by non-government users shall be valid for 1 year from the 
date of initial in-situ deployment of the platforms, and may be renewed 
for additional 1-year periods, 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 non-profit institutions where 
there is a government interest, shall be valid for 1 year from the date 
of initial in-situ deployment of the platforms, and may be renewed for 
additional 1-year periods.
    (4) Agreements for the episodic collection of non-environmental 
data, via the Argos DCS under Sec. 911.4(c)(4), 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.
    (5) Agreements for the testing use of the Argos DCS by equipment 
manufacturers shall be valid for 1 year from the date of initial 
testing, and may be renewed for additional 1-year periods.
    (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 for additional 5-year periods.
    (2) Agreements for the testing use of the GOES DCS, by equipment 
manufacturers, shall be valid for 1 year from the date of initial 
testing, and may be renewed for additional 1-year periods.


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; this may include the international 
distribution of environmental data under the auspices of the World 
Meteorological Organization. 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 DCS on its geostationary 
and polar-orbiting satellites, subject to the availability of future 
appropriations. However, viable commercial space-based alternatives may 
eventually

[[Page 24924]]

obviate the need for NOAA to operate its own space-based DCS.
    (b) If use of the system in support of NOAA programs increases, it 
eventually may be necessary to the 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 and an 
orderly transition.
    (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 are certified to 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 DCS Use Policy Diagram
[GRAPHIC] [TIFF OMITTED] TR06MY98.000


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Appendix B to Part 911--GOES DCS Use Policy Diagram
[GRAPHIC] [TIFF OMITTED] TR06MY98.001



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[FR Doc. 98-11970 Filed 5-5-98; 8:45 am]
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