[Federal Register Volume 65, Number 147 (Monday, July 31, 2000)]
[Rules and Regulations]
[Pages 46822-46837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-18725]
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Part IV
Department of Commerce
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National Oceanic and Atmospheric Administration
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15 CFR Part 960
Licensing of Private Land Remote-Sensing Space Systems; Interim Final
Rule
Federal Register / Vol. 65, No. 147 / Monday, July 31, 2000 / Rules
and Regulations
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 960
[Docket No.: 951031259-9279-03]
RIN 0648-AC64
Licensing of Private Land Remote-Sensing Space Systems
AGENCY: National Oceanic and Atmospheric Administration, Commerce.
ACTION: Interim final rule with request for comments.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA)
issues regulations revising the agency's minimum requirements for the
licensing, monitoring and compliance of operators of private Earth
remote sensing space systems under Title II of the Land Remote Sensing
Policy Act of 1992 (the Act). These regulations implement the
provisions of the 1992 Act, as amended by the 1998 Commercial Space
Act, and the Presidential Policy announced March 10, 1994 (hereinafter
PDD 23). They are intended to facilitate the development of the U.S.
commercial remote sensing industry and promote the collection and
widespread availability of Earth remote sensing data, while preserving
essential U.S. national security interests, foreign policy and
international obligations.
DATES: This rule is effective August 30, 2000. Comments must be
received by September 29, 2000.
ADDRESSES: Comments should be sent to, Charles Wooldridge, NOAA,
National Environmental Satellite, Data, and Information Service, 1335
East-West Highway, Room 7311, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Charles Wooldridge at (301) 713-2024,
ext. 207 or Karen D. Dacres, NOAA, Office of the General Counsel,
Office of the Senior Counselor for Atmospheric and Space Services and
Research, at (301)713-1329, ext. 200.
SUPPLEMENTARY INFORMATION: Title II of the Act, 15 U.S.C. 5601 et seq.,
as amended by Public Law 105-303, authorizes the Secretary of Commerce
(the Secretary) to issue licenses for operation of private remote
sensing space systems. The authority to issue licenses has been
delegated from the Secretary to the Administrator of NOAA (the
Administrator) and redelegated to the Assistant Administrator for
Satellite and Information Services (the Assistant Administrator).
On November 3, 1997, NOAA issued a Notice of Proposed
Rulemaking (NPRM) (See 62 FR 59317). The regulations published
herein update the 1987 Regulations and address the public comments
received in response to the prior NPRM. These regulations apply to all
existing licenses, as well as to all pending and future applications to
operate a private remote sensing space system. They are intended to
promote the development of the U.S. commercial remote sensing industry
and promote the collection and widespread availability of earth remote
sensing data while protecting U.S. national security concerns, foreign
policy and international obligations.
NOAA encourages and promotes the development of advanced
technologies in the remote sensing industry, but recognizes that
national security concerns, foreign policy and international
obligations of the United States may mandate that limitations be
imposed on a system's operation.
1. Major Substantive Issues Raised by Public Comment
NOAA received 24 sets of public comments regarding the November 3,
1997, Notice of Proposed Rulemaking from a wide range of interests in
industry, academia, government, and the foreign policy community.
Despite the volume of comments, most issues raised can be summarized
under the following categories:
(1) control, ownership, and investment;
(2) national security interests, foreign policy and international
obligations;
(3) review of foreign agreements;
(4) confidentiality of information; and
(5) the interagency memorandum of understanding.
Control, Ownership, and Investment
Numerous public comments were related to NOAA's proposed approach
to address the U.S. Government's requirement to regulate and monitor
the control of licensees and the operation of their systems. Most
commenters thought that the proposed regulations failed to adequately
distinguish between control and ownership; that NOAA has no statutory
authority to prohibit foreign investment per se; and that NOAA should
harmonize its regulations with existing Treasury and Securities and
Exchange Commission regulations to monitor change of control.
In developing these final regulations, NOAA accepted many of the
suggestions by the commenters. This final rule focuses on control over
the ``operation'' of the remote sensing system, consistent with NOAA's
statutory authority to license ``operations'' in a manner that protects
the national security, foreign policy and international obligations of
the United States. In furtherance of these mandates, a fundamental
obligation is incorporated into these regulations requiring the
licensee to maintain operational control at all times and provide other
safeguards to ensure the integrity of system operations. NOAA has added
definitions for ``operations'' and ``operational control''. The
definition of ``operations'' serves to effectively determine the scope
of activities covered by the NOAA license. Foreign entities may be
involved in the operations of the system with approval based on a
review conducted by NOAA in consultation with other U.S. Government
(USG) agencies. Operational control is defined to include the
requirement that if entities, domestic or foreign, other than the
licensee are involved in the operations of the system, the licensee
must ultimately be able to override from U.S. territory all commands
issued by any operations centers and stations.
A definition of administrative control has been included and is
adapted from the definition of control contained in the Department of
Treasury Regulations Pertaining to Mergers, Acquisitions, and Takeovers
by Foreign Persons (31 CFR Part 200). Transfer of administrative
control is permissible on a case by case basis unless the USG believes
that the foreign entity exercising control might take action that
threatens to impair U.S. national security, foreign policy and
international obligations. Licensees are required to obtain an
amendment for any transaction that would constitute a transfer of
administrative control. Consequently, NOAA has dropped the strict
presumption of transfer of control based solely on level of foreign
investment and has also deleted bright line tests linked to specific
investment levels or thresholds. However, the level of investment will
be one of several factors to be considered in our analysis.
In an effort to eliminate excessive and redundant regulatory
burdens on industry, NOAA has eliminated certain portions of the
lengthy and rigid notification, amendment, technology transfer, and
export control requirements found in the section on investments
(960.14) from the previous NPRM. Some of these requirements are now
more appropriately addressed in the sections on amendments and foreign
agreements. Others have been eliminated due to overlap with similar
requirements imposed by other agencies' authorities relating to mergers
and acquisitions, securities reporting,
[[Page 46823]]
and export control. For instance, for monitoring purposes NOAA will use
quarterly reports filed by publicly-traded licensees as required by the
SEC. In the event that the licensee is not a publicly-traded company,
the licensee must provide the information required by the SEC in the
10K and 10Q forms.
National Security, Foreign Policy and International Obligations
Many commenters contended that the NPRM was too vague and lacked
needed transparency with regard to limitations on data collection and/
or dissemination (shutter control) during periods when national
security, foreign policy or international obligations may be
compromised. Further, some insisted that shutter control is fraught
with constitutional issues relating to prior restraint of speech and
therefore shutter control required tighter standards than those
articulated in the NPRM. Finally, some commenters contended that
shutter control could only be imposed by the Executive Branch after
judicial review.
A fundamental precept of the 1992 Land Remote Sensing Policy Act
and PDD 23 is that licensing of private remote sensing space systems
must protect the national security, foreign policy and international
obligations of the United States. The USG has reviewed these
regulations in light of the expressed concerns and finds that the
regulations strike an appropriate balance between promoting the U.S.
commercial remote sensing industry and protecting U.S. national
security, foreign policies and international obligations.
In an effort to provide more clarity, the Departments of State,
Defense, Interior, Commerce, and the Intelligence Community, with the
participation of the Office of Science and Technology Policy (OSTP) and
the National Security Council (NSC), concluded an interagency
Memorandum of Understanding (Interagency MOU) concerning the Licensing
of Private Remote Sensing Space Systems. On February 2, 2000, a Fact
Sheet on the Interagency MOU was released. This Fact Sheet is included
as Appendix 2.
The MOU provides among other things that determinations involving
impositions of limitations during commercial operations will be made at
the highest level. The industry and its customers should be reassured
by the MOU's terms which provide that any such limitation should be
imposed for the smallest area and for the shortest period necessary to
protect the national security, international obligation, or foreign
policy concerns at issue. Alternatives to prohibitions on collection
and/or distribution will be considered such as delaying the
transmission or distribution of data, restricting the field of view of
the system, encryption of the data if available, or other means to
control the use of the data.
Review of Foreign Agreements
The definition of significant and substantial foreign agreement was
too broad according to many comments. Several commenters stated that
the NPRM lacked necessary timelines and criteria for the review of
foreign agreements.
These regulations contain a revised definition of significant and
substantial foreign agreement to reflect the tighter focus on issues of
control. This definition has been harmonized with the definitions of
administrative control, operations, and operational control. NOAA has
also added timelines and criteria to indicate the scope of the review.
Confidentiality of Information
Several commenters argued that the NPRM levied burdensome and
intrusive requirements on applicants/licensees to protect their
proprietary information. Recommendations were made that NOAA treat
anything marked proprietary by an applicant/licensee as such without
further justification. Others felt that it is in the public interest
for NOAA to make its licensing regime more transparent, specifically
that the public should have access to summaries of license actions
under review by the agency.
NOAA has removed the requirements of the previous NPRM to provide
justification for all information submitted by an applicant/licensee in
order for the USG to treat it as proprietary information. In accordance
with Section 960.5 and the Federal Trade Secrets Act (18 U.S.C. 1905),
NOAA will treat all information marked by the licensee as proprietary
and no further action on the part of the licensee will be required. Any
requests for information will be treated in accordance with the Freedom
of Information Act in order to protect proprietary information. In the
compelling public interest to have basic information concerning the
regulatory activities of NOAA made more broadly available, these
regulations retain the requirement that licensees provide an executive
summary of their application that can be made available to the public.
Interagency Memorandum of Understanding
Several commenters stated that the Interagency MOU referenced in
the preamble should be part of the public rulemaking process and
submitted for public review and comment.
The Interagency MOU is to establish under the 1992 Act and the
President's policy on remote sensing, interagency procedures concerning
certain aspects of licensing of private remote sensing space systems.
The Interagency MOU Fact Sheet released on February 2, 2000, is
included as Appendix 2 and is not intended to solicit public comments.
2. Organization
Part 960 is organized into four (4) Subparts, discussed in greater
detail below:
(a) Subpart A consists of general information about the regulations
such as the purpose, scope and definitions;
(b) Subpart B addresses licensing procedures and conditions;
(c) Subpart C describes the prohibitions on operating a remote
sensing space system under these regulations; and
(d) Subpart D sets forth the civil penalties available to the
agency for noncompliance with these regulations and/or the terms of any
license issued pursuant to these regulations.
3. Subpart A--General
Section 960.1. Purpose. This section sets forth the purpose of the
regulations regarding licensing and regulating the operation of private
remote sensing space systems under Title II of the Act and reflects the
President's Policy announced on March 10, 1994, entitled, ``U.S. Policy
on Foreign Access to Remote Sensing Space Capabilities'' (PDD 23).
Section 960.2. Scope. This section sets forth the legal parameters
for application of the Act and these regulations. In addition, this
Section makes the regulations applicable with respect to all existing
and new licenses. Potential licensees may address questions regarding
the applicability of the Act and these regulations to the Assistant
Administrator.
Of particular interest is the fact that the Act and these
regulations apply to any person subject to the jurisdiction or control
of the United States who operates or proposes to operate a private
remote sensing space system, either directly or through an affiliate or
subsidiary. For the purposes of these regulations, a person is:
(1) An individual who is a United States citizen, or a foreign
person
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subject to the jurisdiction and control of the United States;
(2) A corporation, partnership, association, or other entity
organized or existing under the laws of any state, territory, or
possession of the United States;
(3) A subsidiary (foreign or domestic) of a U.S. parent company;
(4) An affiliate (foreign or domestic) of a U.S. company; or
(5) Any other private remote sensing space system operator having
substantial connections with the United States or deriving substantial
benefits from the United States that support its international remote
sensing operations sufficient to assert U.S. jurisdiction as a matter
of common law.
Relevant connections may include: using a U.S. launch vehicle and/
or platform; operating a spacecraft command and/or data acquisition or
ground remote station in the United States; and processing the data at
and/or marketing it from facilities within the United States. Please
note that these examples are merely illustrative of the factors that
may be examined in making a jurisdictional determination and are not
intended to be all-encompassing.
Section 960.3. Definitions. This section defines terms used
throughout these regulations, including the following terms:
(1) Administrative control; (2) significant and substantial foreign
agreement; (3) remote sensing space system and (4) operational control.
4. Subpart B--Licenses
License applicants are encouraged to contact the Assistant
Administrator or his or her designee at the earliest possible planning
stages. Such consultation may reveal design or data collection
requirements that may be accommodated early, thereby avoiding changes
to system design or data collection characteristics.
Section 960.4. Application. This section sets forth license
application instructions. Further information regarding the content of
the license application has been included in Appendix 1. The agency
record will be opened upon the filing of the license application.
In general, a license application should contain a complete
description of the design of the sensor package. The level of detail
should approximate that necessary for a contractor Preliminary Design
Review. The potential licensee should note that subsequent changes to
the design affecting those operational capabilities after a license is
awarded may require a license amendment.
Section 960.5. Confidentiality of information. This section sets
forth NOAA's obligation to keep confidential proprietary information
submitted by licensees or potential licensees and imposes a requirement
to provide a summary of such information that can be made public.
Section 960.6. Review Procedures for license applications. This
section describes the application review process.
Section 960.7. Amendments to licenses. This section enumerates some
of the events or conditions which may trigger the requirement for a
license amendment. An application for a license amendment must contain
all relevant new information and must be filed with the Assistant
Administrator. Amendment applications must be filed in accordance with
the procedures specified in Section 960.4 and Appendix 1 for original
license applications.
Please note that for purposes of Section 960.7, the following
transactions do not require an amendment to a license. However, they do
require agency notification under its monitoring and compliance
requirements in the Annual Compliance Audit:
(1) An acquisition of voting securities pursuant to a stock split
or pro rata stock dividend which does not involve a change in
administrative control;
(2) An acquisition of convertible voting securities that does not
involve acquisition of administrative control;
(3) A purchase of voting securities or comparable interests in a
licensee solely for the purpose of investment if, as a result of the
acquisition:
(A) When the acquisition is by a foreign person, the foreign person
would hold ten percent or less of the outstanding voting securities of
the licensee, regardless of the dollar value of the voting securities
so acquired and held; or
(B) The purchase is made directly by a bank, trust company,
insurance company, pension fund, employee benefit plan, mutual fund,
finance company or brokerage company in the ordinary course of business
for its own account, provided that a significant portion of that
business does not involve the acquisition of entities.
(4) An acquisition of securities by a person acting as a securities
underwriter, in the ordinary course of business, and in the process of
underwriting;
(5) An acquisition pursuant to a condition in a contract of
insurance relating to fidelity, surety, or casualty obligations if the
contract was made by an insurer in the ordinary course of business;
(6) An acquisition of a security interest, but not control, in the
voting securities or assets of a licensee at the time a loan or other
financing is extended; or
(7) An acquisition of voting securities or assets of a U.S. person
by a foreign person upon default or other condition, involving a loan
or other financing, provided that the loan was made by a syndicate of
banks in a loan participation where the foreign lender(s) is/are in the
syndicate:
(A) Need(s) the majority consent of the U.S. participants in the
syndicate to take action, and cannot on its own initiate any action
vis-a-vis the debtor; or
(B) Do/does not have the lead role in the syndicate, and are/is
subject to a provision in the loan or financing documents limiting its
influence, ownership or administrative control of the debtor.
Section 960.8. Notification of Foreign Agreements. This section
reflects the balance between promoting the commercial U.S. remote
sensing industry and those requirements imposed by national security
concerns, foreign policy and international obligations of the U.S.
Government. Specifically, this section establishes the procedures,
timelines and criteria for review and approval of a licensee's
significant and substantial foreign agreements.
Section 960.9. License Term. This section provides that the term of
a license for operation of a remote sensing space system is the
operational lifetime of the system as long as the system is operated in
compliance with the terms and conditions of the license and in
accordance with the Act and this Part. In particular, Section 201(b) of
the Act authorizes the Secretary to grant licenses to operate a system,
only upon a determination that the granting of such license and the
operation of the system by the licensee would be consistent with the
national security concerns, foreign policy and international
obligations of the United States. The requirement set forth in Section
201(b) is an ongoing obligation of the Secretary, and as such, the
Secretary must regularly monitor the operation of the system and the
activities of the licensee to assure that the national security
concerns, foreign policy and international obligations of the U.S. are
being protected and that the licensee is in compliance with the
requirements of this Act, any regulations issued pursuant to the Act,
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and the terms and conditions of its license.
Section 960.10. Hearings and Appeals. This section sets forth the
administrative appeals mechanism with regard to licensing and
enforcement actions.
Section 960.11. Conditions for Operation. This section sets forth
the conditions for operation of all systems licensed under these
regulations and includes NOAA's requirement to protect national
security concerns, foreign policy and international obligations of the
United States. In furtherance of these obligations, the license
contains rigorous conditions on the operation of a system, including
the requirement that the licensee maintain operational control of its
system from a U.S. territory at all times and incorporate safeguards to
ensure the integrity of system operations. In particular, it is
important to note that the license requirement imposed on the licensee
that it maintain ``operational control,'' as the term is defined in
Section 960.3, is an implementation of U.S. obligations under the
United Nations Outer Space Treaty of 1967. That treaty provides that
the U.S. Government, as a State party, will be held strictly liable for
any U.S. private or governmental entity's actions in outer-space.
Consequently, NOAA requires that licensees under this part maintain
ultimate control of their systems, in order to minimize the risk of
such liability and assure that the national security concerns, foreign
policy and international obligations of the United States are
protected.
In determining what constitutes operational control, NOAA has moved
away from a percentage formula of foreign ownership and has instead
imposed a requirement that operational control of the system be based
within the territorial jurisdiction of the United States including U.S.
territories and protectorates. The Secretary may also examine the level
of administrative control of a licensee exercised by foreign investors,
including whether the respective controlling investment was a foreign
merger, acquisition or takeover of a U.S. company that was reviewed by
the Committee on Foreign Investment in the United States (CFIUS) under
section 721 of the Defense Production Act.
In addition, Section 960.11 requires the licensee to maintain and
make available to the U.S. Government, upon request, various records of
operations for the previous year, and allow the Secretary of Commerce
or his or her designee to inspect such records at all reasonable times,
as described in the license.
As part of the reporting and recordkeeping requirements imposed by
the license, the licensee is expected to provide various data as
verification of compliance with the operating restrictions detailed in
the operating license. In addition, monitoring and compliance
requirements are imposed within the license such as quarterly
reporting, on-site inspections and appropriate records review. Finally,
the license sets forth reporting requirements for both publicly-traded
and privately-held companies. Licensees that are registered pursuant to
the Securities Exchange Act of 1934 (Exchange Act) may submit copies of
their Securities and Exchange Commission (SEC) forms 10-K and 10-Q to
fulfill this requirement. Licensees that are not registered pursuant to
the Exchange Act must include, in their quarterly and annual reports,
applicable information listed in the SEC's 10K and 10Q forms.
Monitoring and Compliance Program
Consistent with the requirements outlined in Section 960.11 and
NOAA's monitoring and compliance program under these regulations, the
following information shall be filed by the licensee, in order to
evaluate its compliance with the provisions of its private remote
sensing space system license. Data provided must be in sufficient
detail to enable the Secretary to determine whether the licensee's
actions meet the requirements of the Act, these regulations, and the
license. Additional information may be required.
Section I--Annual Compliance Audit
An on-site audit shall be conducted at least annually, following
the issuance of a license, to confirm the licensee's compliance with
the national security, foreign policy, and international obligations of
the United States and compliance with all other license conditions.
This audit shall review, for example, any changes to corporate
structure, board membership (including citizenship), ownership, and
financial investments. The audit will also include Securities and
Exchange Commission filings. In the event that the licensee is not a
publicly-traded company, the licensee must provide applicable
information required by the SEC in the 10K and 10Q forms. The Annual
Compliance Audit will also review agreements which impact the national
security, foreign policy and international obligations of the United
States, and the concept of operations. Additional information may be
required.
Section II--Twelve Months Prior to Launch
1. Submit plan for agency approval describing how licensee will
comply with data collection restrictions, operational limitations, or
any data protection plans, as required.
2. Submit operations plan for restricting collection and/or
dissemination of imagery of Israeli territory to that which is no more
detailed or precise than what will be available from non-U.S.
commercial sources during the time of the licensee's planned
operations.
Section III--No Later Than Six Months Prior To Launch
1. Submit a data flow diagram which graphically represents the data
flow from the sensor to the final product delivery locations.
2. Submit satellite sub-systems drawing showing the various sub-
system locations on the satellite.
3. Submit a final imaging system specification document for each
sensor. This must be coordinated with the imaging system contractor.
Section IV--When the Spacecraft is Declared Operational
Spacecraft designation number.
Orbital altitude.
Orbital inclination.
Spacecraft state of health.
Imaging system state of health.
Spatial Resolution.
Spectral Resolution.
On-orbit absolute geo-positioning accuracy.
Circular Error and Linear Error.
Section V--Quarterly Reporting
1. Date, description, and corrective action performed for any
anomalies or events which have caused the system to operate outside of
license parameters and what action, if any, was performed to return the
system to licensed baseline status.
2. Estimated GSD of all images collected and disseminated on the
State of Israel.
Section VI--Annual Operational Audit and Record Keeping
In addition to the information required for the Annual Compliance
Audit listed in Section I, all records and data from the previous
twelve months pertaining to the following will be maintained by the
licensee:
1. Spacecraft telemetry.
2. Imaging sensor(s) tasking and associated metadata to include
date/time of collection, image number, imager used, image corner points
in
[[Page 46826]]
latitude/longitude, inertial position (x,y,z), scan duration, azimuth.
In addition, radar systems will include tasking and assorted meta data
for phase history, grazing angle and polarization information.
3. Imagery data purges and purge alerts provided to the National
Satellite Land Remote Sensing Data Archive (the National Archive).
Purge Notifications to the National Archive
Licensees are required to notify the National Archive of any data
in its possession from its licensed remote-sensing space system that it
intends to discard so that the Archive may acquire such data on
reasonable cost terms as agreed by the licensee and the Archive. At the
beginning of each quarter, licensees must notify the Archive of data
sets it intends to purge for review by the National Archive.
Unenhanced Data
When Congress removed the blanket nondiscriminatory data access
requirement, it was careful to ensure that access to the unenhanced
data would remain consistent with the United Nations' Principles on
Remote Sensing, that the government of a sensed state should have
timely access to all such data concerning its own territory. Section
202(b)(2) of the 1992 Act requires that all licenses include the
condition that the licensee shall make available upon request to the
government of any country, including the United States, unenhanced data
collected by the system concerning the territory under the jurisdiction
of such government on reasonable commercial terms and conditions as
soon as such data are available; consistent with the national security
concerns, foreign policy and international obligations of the U.S.
The regulations incorporate this requirement and consistent with
this requirement, NOAA interprets the terms and conditions that are
``reasonable'' in those cases where the data will not be made available
on a nondiscriminatory basis. Making the data available to different
classes of customers, e.g. non-commercial scientific and educational
users, other public benefit users, commercial end users, and value-
added re-distributors, at different prices is reasonable.
If a licensee intends to provide its unenhanced data on a
restricted or exclusive basis, it becomes more difficult to determine
what is ``reasonable'' vis-a-vis a sensed state. The price of these
data, if measured in terms of their value to a particular commercial
customer, may be prohibitive to a small government that simply wishes
to monitor its own natural resources or to use the data, for example,
for purposes of land use planning or to mitigate the effects of a
recent natural disaster. On the other hand, the same price may be
reasonable if the sensed state intends to use the data for competitive
purposes. The reasonable commercial terms and conditions will have to
be considered on a case-by-case basis. In any event, the sensed state
has the opportunity to demonstrate that the terms result in an undue
hardship.
NOAA fully expects that a licensee's obligation to make unenhanced
data available to the sensed state will in almost all instances be
satisfied as a normal commercial transaction where the government of a
sensed state is a regular customer. In those instances where the sensed
state has not been able to satisfy its desire to acquire unenhanced
data directly from the licensee, the sensed state shall make a formal
written request to the Assistant Administrator including the specific
information (i.e., geographic location, date) on the unenhanced data it
desires to acquire.
Licensing of New or Advanced Systems
As a general matter, the NOAA license covers the end-to-end
operational capability of a remote sensing space system's ability to
quantify information that includes, but is not limited to spatial,
spectral, temporal, coherence, and polarization properties of
reflected, transmitted, or emitted electromagnetic radiation.
In issuing licenses for new and advanced technologies that have not
previously been licensed by NOAA, NOAA may apply new license conditions
to address the unique characteristics and attributes of these systems.
For example, NOAA may grant a ``two-tiered'' license, allowing the
licensee to operate its system at one level, available to all users,
while reserving the full operational capability of that system for USG
or USG-approved customers only. In some cases, the system may have a
USG partnership client.
Since the 1997 NPRM, NOAA has licensed space-based radar and
hyperspectral systems. The conditions outlined in section 960.11 apply
to all systems, including licensed space-based radar and hyperspectral
systems. However, in issuing licenses for synthetic aperture radar and
hyperspectral systems, conditions or specific limitations may be
placed, as necessary, on operational parameters, design
characteristics, and data throughput due to national security, foreign
policy and international obligations.
For synthetic aperture radar systems these include, but are not
limited to:
(1) resolution in terms of impulse response (IPR);
(2) grazing angles;
(3) geolocational accuracy;
(4) multiple polarization;
(5) system throughput (i.e., measurement of time during data
collection, ground processing, and dissemination);
(6) protection of phase history data;
(7) location and function of non-U.S. operations centers and
stations; and
(8) protection of all uplinks and downlinks.
For hyperspectral systems these include, but are not limited to:
(1) Spatial and spectral resolution;
(2) Co-registration of hyperspectral data with data provided by
other on-board sensors;
(3) Operational wavelengths;
(4) System throughput (i.e., measurement of time during data
collection, ground processing, and dissemination);
(5) Protection of remote sensing space system commanding, sensor
tasking, and tasking information;
(6) Protection of raw data;
(7) Location and function of non-U.S. operations centers and
stations; and
(8) Protection of all uplinks and downlinks.
Reimbursements
As allowed by Section 507 (d) of the Act, if additional technical
modifications are imposed on a system operated under a previously
granted license, on the basis of national security, the licensee may be
reimbursed for those technical modifications. Generally, conditions in
original licenses, previously-granted licenses or amendments that are
the result of licensee initiated activities will not be considered for
reimbursement. The Assistant Administrator, in consultation with the
Secretary of Defense or other appropriate federal agencies, will
determine whether actual modification costs or past development costs
(including the cost of capital) incurred by the licensee shall be
reimbursed by the government agency or agencies which requested such
technical modifications. The costs and terms associated with meeting
this condition will be negotiated directly between the licensee and the
agency or agencies requesting the technical modifications. The loss of
anticipated profits and the cost of security measures imposed on all
licensees are not reimbursable.
[[Page 46827]]
Kyl-Bingaman Amendment
Consistent with the requirement that licensees operate their
systems in a manner that protects national security concerns, foreign
policy and international obligations, Section 1064, Pub. L. No. 104-
201, (the 1997 Defense Authorization Act), referred to as the Kyl-
Bingaman Amendment, requires that ``[a] department or agency of the
United States may issue a license for the collection or dissemination
by a non-Federal entity of satellite imagery with respect to Israel
only if such imagery is no more detailed or precise than satellite
imagery of Israel that is available from commercial sources.''
Pursuant to that law, the Department of Commerce will make a
finding as to the level of detail or precision of satellite imagery of
Israel available from commercial sources. Moreover, as the statutory
limitation applies to U.S. licensees, the term ``commercial sources''
is interpreted for purposes of these regulations as referring to
satellite imagery so readily and consistently available from non-U.S.
commercial entities that the availability of additional imagery from
U.S. commercial sources may be permitted.
To interpret the term ``commercial availability'' of imagery of
Israel from non-U.S. sources, NOAA looks to regulations of the Commerce
Department's Bureau of Export Administration, concerning findings on
foreign availability for export control purposes, as a model (See 15
CFR 768). These regulations state that ``foreign availability exists
when the Secretary [of Commerce] determines that an item is comparable
in quality to an item subject to U.S. national security export
controls, and is available-in-fact to a country, from a non-U.S.
source, in sufficient quantities to render the U.S. export control of
that item or the denial of a license ineffective.'' (See 15 CFR
768.2(a)).
Applying the above approach to implement the Kyl-Bingaman
Amendment, the Department of Commerce will monitor the level of imagery
resolution readily and consistently available in sufficient quantities
from non-U.S. sources, to determine what imaging or data dissemination
restrictions, if any, shall apply to licensees. A review of non-U.S.
commercial availability will be conducted on an annual basis or more
frequently if warranted. Input from licensees or from the general
public is welcome to assist in this determination. Findings of this
review will be published in the Federal Register and will constitute
the data collection and/or dissemination restrictions with respect to
imagery of Israel.
As part of its licensing process, NOAA will require an applicant to
submit a plan explaining how its proposed system will be able to
restrict the collection and/or dissemination of imagery of Israeli
territory at a level of resolution determined by the Commerce
Department. NOAA will review this plan to ensure compliance.
Spacecraft Disposal and Orbital Debris Mitigation Plan
As an additional licensing requirement, licensees shall, ``upon
termination of operations under the license, make disposition of any
satellites in space in a manner satisfactory to the President,'' in
accordance with Section 202(b)(4) of the Act. Under Section 960.11 and
the terms and conditions of the license, NOAA has interpreted this
requirement to mean that a licensee shall assess and minimize the
amount of orbital debris released during the post-mission disposal of
its satellite. Applicants are required to provide at the time of
application a plan for post-mission disposition of remote sensing
satellites.
The U.S. Government has developed orbital debris mitigation
practices for use in government missions. These practices include
control of orbital debris released during normal operations,
minimization of debris generated by accidental explosions, selection of
a safe flight profile and operational configuration, and post-mission
disposal of space structures. NOAA will make available to applicants
background information on three possible methods for post-mission
disposal which are consistent with these practices: atmospheric re-
entry, maneuvering to a storage orbit, or direct retrieval. NOAA will
review an applicant's plan for post-mission disposal on a case-by-case
basis. NOAA will assess whether the plan, including satellite design
and components, provide an acceptable post-mission disposal method to
mitigate orbital debris and minimize any potential adverse effects.
Applicants are specifically required to submit a casualty risk
assessment if planned post-mission disposal involves atmospheric re-
entry of the spacecraft.
Section 960.12 Data Policy for Remote Sensing Space Systems. This
section describes various circumstances under which the licensee may be
required, consistent with the terms of its license, to make available
some or all of the unenhanced data from the system on a
nondiscriminatory basis in accordance with Section 501 of the Act. For
example, if the U.S. Government has (either directly or indirectly)
funded some of the development, fabrication, launch, or operations
costs of a licensed system, the Secretary of Commerce or his or her
designee, in consultation with other appropriate U.S. agencies, must
determine whether the interest of the United States, in promoting
widespread availability of remote sensing data, requires that some or
all of the unenhanced data from the system be made available on a
nondiscriminatory basis in accordance with Section 501 of the Act. In
addition, the license must specify any data subject to this
requirement.
The Act requires that an operator of a system that can be
characterized as essentially a Governmental system, such as the Landsat
system and those systems that are substantially funded by the U.S.
Government, make its unenhanced data available on a nondiscriminatory
basis, but allows the operator of a non-governmental system to follow
normal commercial practices unless U.S. interests dictate otherwise.
(See Sections 201(e), 202(b)(3), and 501).
Section 960.13 of the regulations implements this provision
consistent with the Act's overall objective of making data available to
the widest possible spectrum of users, particularly for scientific
purposes in support of the public benefit upon reasonable terms and
conditions. This section addresses three categories of licensees. The
first are those whose development, fabrication, launch, or operations
costs have been funded, entirely or in substantial part, directly by
the Government. As dictated by the Act, these operators must make their
unenhanced data available on a nondiscriminatory basis. This
requirement ensures that the data are broadly accessible and is
consistent with the basic policy, codified in the Paperwork Reduction
Act, 44 U.S.C. 3506 et seq. and included in Office of Management and
Budget Circular A-130, that data paid for by the taxpayer is a public
benefit to be made equally available to all members of the public.
The second category of licensees are those that are fully
commercial, i.e., not funded by the Government in whole or in part.
These operators will be allowed to follow their preferred commercial
data practices, subject to providing the unenhanced data to the
governments of those states sensed, and consistent with concerns
regarding U.S. national security, foreign policy, and international
obligations, as discussed below. These licensees will be encouraged to
promote access to their data on as widespread a basis as
[[Page 46828]]
possible and it is anticipated that, in most cases, there will be a
commercial incentive to reach a broad customer base. It is recognized
that in some cases, some of the data collected by such systems may not
become generally accessible. However, NOAA believes that this loss will
be outweighed by the substantially greater volume of data that will be
collected by a vigorous commercial industry. It should be noted that
limited purchases by the U.S. Government, as a normal customer of the
licensee, would not constitute funding or support for purposes of this
section.
The third category of licensees consists of those systems in which
the U.S. Government provides some support. Here, the Government's
interest is more significant, because of taxpayer investment and the
possible precedential effect of permitting restricted access to the
data through international data exchange involving government
subsidized public-private ventures. The data policy applicable to these
licensees will be determined on a case-by-case basis, balancing the
effect on the licensee of limiting its commercial options against the
potential benefits of providing widespread access of the data for non-
commercial scientific, educational and other public benefit purposes.
In evaluating the potential for data loss, NOAA will consider both the
data to be gathered by the particular licensee as well as the possible
implications for future intergovernmental data exchanges.
It is anticipated that the U.S. Government interest in making the
data available can usually be addressed through terms and conditions in
the license that do not require a full nondiscriminatory data access
policy. For example, it may be possible to accommodate such interests
by ensuring access for non-commercial scientific, educational, and
other public good purposes, while protecting a licensee's commercial
options.
5. Subpart C--Prohibitions
Section 960.13 Prohibitions. This section sets forth the
prohibitions under these regulations. Under this section, it is
unlawful for any person who is subject to the jurisdiction or control
of the United States, directly or through any subsidiary or affiliate
to, among other things: (a) operate a system without possession of a
valid license issued under the Act and these regulations; (b) violate
any provision of the Act, these regulations or any term, condition, or
restriction of the license; (c) violate any order, directive, or other
notice issued by the Secretary; and/or (d) interfere with the
enforcement of this Part.
6. Subpart D--Enforcement Procedures
Section 960.14 Civil Penalties. Generally, this section states
that any person found to be in violation of the Act, this part, or any
license issued under this part, will be subject to the civil penalty
provisions prescribed in the Act, 15 CFR 904 (Civil Procedures) and
other applicable laws.
7. Appendices
Appendix 1--Application Information. This Appendix contains the
information requirements of the license application as discussed in
Section 960.4. Pursuant to the Paperwork Reduction Act, we are asking
for comments to this Appendix.
Appendix 2--Fact Sheet Regarding the Memorandum of Understanding
Concerning the Licensing of Private Remote Sensing Satellite Systems.
The Departments of State, Defense, Interior, Commerce, and the
Intelligence Community, with the participation of OSTP and the NSC,
concluded an interagency MOU concerning the Licensing of Private Remote
Sensing Space Systems. On February 2, 2000, a Fact Sheet on the
Interagency MOU was released. This Fact Sheet is included as Appendix
2. The MOU is not within the scope of this rulemaking. Appendix 2 is
not subject to public comment.
Classification
A. Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
These regulations establish a process intended to promote the
development of the remote sensing industry and to minimize any adverse
impact on any entity, large or small, that may seek a license to
operate a private remote sensing space system.
Accordingly, 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 this rule will
not have a significant economic impact on a substantial number of small
entities. The basis for this confirmation was on the fact that, given
extraordinary capitalization required to operate a commercial remote
sensing space system, costs of development and launch still remain
high. As such, small entities have yet to enter this field and appear
highly unlikely to do so. No comments were received regarding this
certification. As a result, no final regulatory flexibility analysis
was prepared.
B. Paperwork Reduction Act of 1995 (35 U.S.C. 3500 et seq.)
This rule contains a collection-of-information requirement subject
to the Paperwork Reduction Act (PRA) and which has received emergency
approval by OMB under control number 0648-0174. NOAA intends to submit
a clearance request to receive a three-year approval and is soliciting
comments on that submission at this time using the same estimated
reporting burden.
Public reporting burden for these collection-of-information
requirements are estimated to average: 40 hours per license
application; 10 hours for license amendment submissions; 1 hour to
provide an executive summary of a license application or amendment; 2
hours for notification/submission of a foreign agreement; 2 hours for a
notification of the demise of a system or a decision to discontinue
system operations; 2 hours for notification of any operational
deviation; 5 hours for a plan describing how the licensee will comply
with data collection restrictions; 3 hours for an operations plan for
restricting collection or dissemination of imagery of Israeli
territory; 3 hours for a data flow diagram; 1 hour for a satellite sub-
systems drawing; 3 hours for a final imaging system specification
document; 2 hours for submission of spacecraft operational information
submitted when a spacecraft becomes operational; 2 hours for
notification of deviation in orbit or spacecraft disposition; 3 hours
for quarterly reports; 2 hours for purge notifications to the Archive;
8 hours for annual compliance audits; and 10 hours for annual
operational audits. No estimate is being given at this time to provide
imagery data to the National Satellite Land Remote Sensing Data
Archive. An estimate will be developed at a later date.
Public reporting burden for this collection of information includes
the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Public comment is sought regarding:
Whether this proposed collection of information is necessary for the
proper performance of the functions of the agency, including whether
the information shall have practical utility; the accuracy of the
burden estimate; ways to enhance the quality, utility, and clarity of
the information to be collected; and ways to minimize the burden of the
collection of information, including through the use of automated
collection techniques or other forms of information technology.
[[Page 46829]]
Send comments regarding this burden estimate, or any other aspect of
this data collection, including suggestions for reducing the burden to
Charles Wooldridge, NOAA, National Environmental Satellite, Data, and
Information Service, 1315 East-West Highway, Room 7311, Silver Spring,
MD 20910.
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.
C. National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Publication of these 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, Regulatory Planning and Review
This rule has been determined to be significant for purposes of
Executive Order 12866.
List of Subjects in 15 CFR Part 960
Administrative practice and procedure, Confidential business
information, Penalties, Reporting and recordkeeping requirements,
Satellites, Scientific equipment, Space transportation and exploration.
Dated: July 19, 2000.
Gregory W. Withee,
Assistant Administrator for Satellite and Information Services.
Accordingly, for the reasons set forth above, Part 960 of title 15
of the Code of Federal Regulations is revised to read as follows:
PART 960--LICENSING OF PRIVATE REMOTE SENSING SYSTEMS
Subpart A--General
Sec.
960.1 Purpose.
960.2 Scope.
960.3 Definitions.
Subpart B--Licenses
960.4 Application.
960.5 Confidentiality of information.
960.6 Review procedures for license applications.
960.7 Amendments to licenses.
960.8 Notification of foreign agreements.
960.9 License term.
960.10 Appeals/hearings.
960.11 Conditions for operation.
960.12 Data policy for remote sensing space systems.
Subpart C--Prohibitions
960.13 Prohibitions.
Subpart D--Enforcement Procedures
960.14 In general.
960.15 Penalties and sanctions.
Appendix 1 to Part 960--Filing Instructions and Information To Be
Included in the Licensing Application
Appendix 2 to Part 960--Fact Sheet Regarding the Memorandum of
Understanding Concerning the Licensing of Private Remote Sensing
Satellite Systems Dated February 2, 2000
Authority: 15 U.S.C. 5624.
Subpart A--General
Sec. 960.1 Purpose.
(a) The regulations in this part set forth the procedural and
informational requirements for obtaining a license to operate a private
remote sensing space system under Title II of the Land Remote Sensing
Policy Act of 1992 (15 U.S.C. 5601 et seq.) (Public Law 102-555, 106
Stat. 4163) and the President's Policy announced on March 10, 1994,
entitled, ``U.S. Policy on Foreign Access to Remote Sensing Space
Capabilities'' (PDD 23) (Available from NOAA, National Environmental
Satellite Data and Information Service, 1335 East-West Highway, Room
7311, Silver Spring, MD 20910). In addition, this part describes NOAA's
regulation of such systems, pursuant to the Act and PDD 23. The
regulations in this part are intended to:
(1) Facilitate development of the commercial space remote sensing
industry in the United States and promote the broad use of remote
sensing data;
(2) Preserve the national security of the United States;
(3) Observe the foreign policies and international obligations of
the United States;
(4) Ensure that unenhanced data collected by licensed private
remote sensing space systems concerning the territory of any country
are made available to the government of that country upon its request,
as soon as such data are available and on reasonable commercial terms
and conditions as appropriate;
(5) Ensure that remotely sensed data are widely available for
research, particularly environmental and global change research; and
(6) Maintain a permanent comprehensive U.S. government archive of
global land remote sensing data for long-term monitoring and study of
the changing global environment and other archival purposes.
(b) In accordance with the Act and the PDD 23, decisions regarding
the issuance of licenses and operational conditions (See subpart B of
this part) will be made by the Secretary of Commerce, or his/her
designee. Determinations of conditions to meet national security,
foreign policy and international obligations are made by the
Secretaries of Defense and State respectively. Determinations will be
made in accordance with the process described in the Interagency MOU
Fact Sheet contained in Appendix 2 of this part.
Sec. 960.2 Scope.
(a) The Act and the regulations in this part apply to any person
subject to the jurisdiction or control of the United States who
operates or proposes to operate a private remote sensing space system,
either directly or through an affiliate or subsidiary, and/or
establishes substantial connections with the United States regarding
the operation of a private remote sensing system.
(b) In determining whether substantial connections exist with
regard to a specific system, the factors NOAA may consider include, but
are not limited to: the location of a system control center or
operations centers and stations; the administrative control of the
system; use of a U.S. launch vehicle; location or administrative
control of ground receiving stations; the investment, ownership, or
technology included in the system.
(c) The regulations in this part apply to any action taken on or
after August 30, 2000 with respect to any license, and to pre-existing
licenses.
(d) If any provision of the regulations in this part or the
application thereof to any person or circumstance is held invalid, the
validity of the remainder of the regulations in this part or the
application of such provision to other persons and circumstances shall
not be affected.
(e) Issuance of a license under the regulations in this part does
not affect the authority of any Department or Agency of the U.S.
Government including, but not limited to, the Federal Communications
Commission under the Communications Act of 1934 (47 U.S.C. 151 et
seq.), the Department of Transportation under the Commercial Space
Launch Act of 1984 (49 U.S.C. app.2601 et seq.), the Department of
Commerce under the Export Administration Regulations (15 CFR parts 730-
774), or the Department of State under the Arms Export Control Act (22
U.S.C. 2778) and the International Traffic in Arms Regulations (22 CFR
parts 120-130).
[[Page 46830]]
Sec. 960.3 Definitions.
For purposes of the regulations in this part, the following terms
have the following meanings:
Act means the Land Remote Sensing Policy Act of 1992 (Public Law
102-555, 106 Stat. 4163) as amended by the 1998 Commercial Space Act
(Public Law 105-303, 112 Stat. 2846), 15 U.S.C. 5601 et seq.
Administrative control means the power or authority, direct or
indirect, whether or not exercised through the legal or defacto
ownership or possession thereof, ownership of voting securities of a
licensee, or by proxy voting, contractual arrangements or other means,
to determine, direct or decide matters affecting the operations of the
system; specifically, to determine, direct, take, manage, administer,
influence, reach, or cause decisions regarding the:
(1) Sale, lease, mortgage pledge, or other transfer of any or all
of the system or system control assets of the licensee, whether in the
ordinary course of business or not;
(2) Operation of the system(s), including but not limited to orbit
maintenance and other housekeeping functions, tasking and tasking
prioritization, data acquisition, data storage, data transmission,
processing and dissemination;
(3) Dissolution of the licensee;
(4) Closing and/or relocation of the command and control center of
the system;
(5) Execution, substantive modification and/or termination or non-
fulfillment of any significant or substantial foreign agreement of the
licensee regarding direct readout or tasking obligations; or
(6) Amendment of the Articles of Incorporation or constituent
agreement of the licensee with respect to the matters described in
paragraphs (1) through (4) of this definition.
Administrator means the Administrator of NOAA and Under Secretary
of Commerce for Oceans and Atmosphere or his/her designee.
Affiliate means any person: (1) Which owns or controls more than a
5% interest in the applicant or licensee; or (2) Which is under common
ownership or control with the applicant or licensee.
Applicant means a person who has submitted an application for a
NOAA license to operate a remote sensing space system.
Archive means the National Satellite Land Remote Sensing Data
Archive established by the Secretary of the Interior pursuant to the
archival responsibilities defined in Section 502 of the Act.
Assistant Administrator means the Assistant Administrator of NOAA
for Satellite and Information Services or his/her designee.
Authorized Officer means an individual designated by the Secretary
of Commerce or his/her designee to enforce the regulations in this
part.
Basic data set means those unenhanced data generated by the Landsat
system or by any remote sensing space system licensed under the Act
that have been selected by the Secretary of the Interior to be
maintained in the Archive, as described in Section 502(c) of the Act.
Beneficial owner means any person who, directly or indirectly,
through any contract, arrangement, understanding, relationship, or
otherwise, has or shares: the right to exercise administrative control
over a licensee; and the power to dispose of, or to direct the
disposition of, any security interest in a license. All securities of
the same class beneficially owned by a person, regardless of the form
which such beneficial ownership takes, shall be aggregated in
calculating the number of shares beneficially owned by such person. A
person shall be deemed to be the beneficial owner of a security
interest if that person has the right to acquire beneficial ownership,
as defined in this definition, within sixty (60) days from acquiring
that interest, including, but not limited to, any right to acquire
beneficial ownership through: the exercise of any option, warrant or
right; the conversion of a security; the power to revoke a trust,
discretionary account, or similar arrangement; or the automatic
termination of a trust, discretionary account or similar arrangement.
License means a grant of authority under the Act by the
Administrator to a person to operate a private remote-sensing space
system.
Licensee means a person who holds a NOAA license to operate a
remote sensing space system.
NOAA means the National Oceanic and Atmospheric Administration.
Operate means to manage, run, authorize, control, or otherwise
affect the functioning of a remote sensing space system, directly or
through an affiliate or subsidiary. This includes:
(1) Commanding, controlling, tasking, and navigation of the system;
or
(2) Data acquisition, storage, processing, and dissemination.
Operational control means the ability to operate the system or
override commands issued by any operations center or station.
Orbital debris means all human-generated debris in Earth orbit.
This includes, but is not limited to, payloads that can no longer
perform their mission, rocket bodies and other hardware (e.g., bolt
fragments and covers) left in orbit as a result of normal launch and
operational activities, and fragmentation debris produced by failure or
collision. Gases and liquids in free state are not considered orbital
debris.
Person means any individual (whether or not a citizen of the United
States) subject to U.S. jurisdiction; a corporation, partnership,
association, or other entity organized or existing under the laws of
the United States; a subsidiary (foreign or domestic) of a U.S. parent
company; an affiliate (foreign or domestic) of a U.S. company; or any
other private remote sensing space system operator having substantial
connections with the United States or deriving substantial benefits
from the United States that support its international remote sensing
operations sufficient to assert U.S. jurisdiction as a matter of common
law.
President's Policy means the President's Policy entitled, ``U.S.
Policy on Foreign Access to Remote Sensing Space Capabilities''
announced on March 10, 1994 (PDD 23).
Proprietary information means any business or trade secrets or
commercial or financial information explicitly designated as
proprietary or confidential by the submitter, the public release of
which would cause substantial harm to the competitive position of the
submitter. Once the information is publicly-released by the submitter,
it is no longer considered proprietary.
Remote sensing space system, Licensed system, or System means any
device, instrument, or combination thereof, the space-borne platform
upon which it is carried, and any related facilities capable of
actively or passively sensing the Earth's surface, including bodies of
water, from space by making use of the properties of the
electromagnetic waves emitted, reflected, or diffracted by the sensed
objects. For purposes of the regulations in this part, a licensed
system consists of a finite number of satellites and associated
facilities, including those for tasking, receiving, and storing data,
designated at the time of the license application. Small, hand-held
cameras shall not be considered remote sensing space systems.
Secretary means the Secretary of Commerce.
Security means any note, stock, treasury stock, bond, debenture,
evidence of indebtedness, certificate of
[[Page 46831]]
interest or participation in any profit-sharing agreement, collateral
trust certificate, pre-organization certificate or subscription,
transferable share, investment contract, voting trust certificate, or
certificate of deposit for a security; any put, call, straddle, option,
or privilege on any security, certificate of deposit, or group or index
of securities (including any interest therein or based on the value
thereof); any put, call, straddle, option, or privilege entered into a
national securities exchange relating to foreign currency; any interest
or instrument commonly known as a ``security''; or any certificate of
interest or participation in, temporary or interim certificate for,
receipt for, guarantee of, or warrant or right to subscribe to or
purchase, any of the foregoing.
Significant or Substantial foreign agreement (also referred to in
this part as foreign agreement or agreement) means an agreement with a
foreign nation, entity, consortium, or person that provides for one or
more of the following:
(1) Administrative control which may include distributorship
arrangements involving the routine receipt of high volumes of the
system's unenhanced data;
(2) Participation in the operations of the system;
(3) Direct access to the system's unenhanced data; or
(4) An equity interest in the licensee held by a foreign nation
and/or person, if such interest equals or exceeds or will equal or
exceed ten (10) percent of total outstanding shares, or entitles the
foreign person to a position on the licensee's Board of Directors.
Subsidiary means a person over which the applicant or licensee may
exercise administrative control.
Tasking means any action taken to command a remote sensing space
system or its sensor to acquire data for transmission or storage on the
satellite's recording subsystem. Such action can be in the form of
commands sent to the system for execution or for storage in the
satellite's memory for execution at a specified time or location within
a given orbit.
Under Secretary means the Under Secretary of Commerce for Oceans
and Atmosphere and Administrator of NOAA or his/her designee.
Unenhanced data means remote sensing signals or imagery products
that are unprocessed or subject only to data preprocessing. Data
preprocessing may include rectification of system and sensor
distortions in remote sensing data as it is received directly from the
satellite; registration of such data with respect to features of the
Earth; and calibration of spectral response with respect to such data.
It does not include conclusions, manipulations, or calculations derived
from such data, or a combination of such data with other data. It also
excludes phase history data for synthetic aperture radar systems or
other space-based radar systems.
Subpart B--Licenses
Sec. 960.4 Application.
No person subject to the jurisdiction and/or control of the United
States may operate a private remote sensing space system without a
license issued pursuant to this part.
(a) Filing instructions, as well as a list of information to be
included in the license application, are included in Appendix 1 of this
part.
(b) If information in an application becomes inaccurate or
incomplete prior to issuance of the license, the applicant must, within
14 days, file the new or corrected information with the Assistant
Administrator. If new or revised information is filed during the
application process, the Assistant Administrator shall, within fourteen
(14) days, determine whether the deadline imposed by Section 201(c) of
the Act and Sec. 960.6(a) must be extended to allow adequate review of
the revised application and, if so, for how long.
Sec. 960.5 Confidentiality of information.
(a) Any proprietary information contained in a license application
or application for amendment and submitted to NOAA will be treated as
business confidential or proprietary information, if that information
is explicitly designated and marked as such by the submitter. This does
not preclude the United States Government from citing information in
the public domain provided by the licensee in another venue (e.g., the
licensee's website or a press release).
(b) Concurrently with the filing of a license application or an
application for an amendment, the applicant or licensee shall provide
the Assistant Administrator with a publicly-releasable summary of the
application or amendment. This summary shall be available for public
review at a location designated by the Assistant Administrator and
shall include:
(1) The name, mailing address and telephone number of the applicant
and any affiliates or subsidiaries;
(2) A general description of the system, its orbit(s) and the type
of data to be acquired;
(3) The name and address upon whom service of all documents may be
made;
(4) A general description of the information being modified by an
amendment request.
Sec. 960.6 Review procedures for license applications.
The following procedures are consistent and have been harmonized
with those procedures, including time lines, described in the Fact
Sheet, at Appendix 2 of this part, which governs in lieu of this
section and Secs. 960.7 and 960.8 with respect to the process for
reaching determinations of conditions necessary to meet national
security, international obligations and foreign policy and which is
outside the scope of the regulations in this part.
(a) The Assistant Administrator shall within three (3) working days
of receipt of an application, forward a copy of the application to the
Department of Defense, the Department of State, the Department of the
Interior, and any other Federal agencies determined to have a
substantial interest in the license application. The Assistant
Administrator shall advise such agencies of the deadline prescribed by
paragraph (b) of this section to require additional information from
the applicant. The Assistant Administrator shall make a determination
to issue the license, in accordance with the Act and Sec. 960.1(b),
within 120 days of its receipt. If a determination has not been made
within 120 days, the Assistant Administrator shall inform the applicant
of any pending issues and any action required to resolve them.
(b) The reviewing agencies have ten (10) working days from receipt
of application to notify the Assistant Administrator in writing whether
the application omits any of the information listed in Appendix 1 of
this part or whether additional information may be necessary to
complete the application. If these agencies cannot complete their
review in the time allotted, they must notify NOAA in writing of the
additional time needed to complete review, not to exceed ten (10)
working days. This notification shall state the specific reasons why
the additional information is sought. The Assistant Administrator shall
then notify the applicant, in writing, what information is required to
complete the license application. The 120-day review period prescribed
in Section 201(c) of the Act will be stopped until the Assistant
Administrator determines that the license application is complete.
(c) Within thirty (30) days of receipt of a complete application,
as determined by the Assistant Administrator, each Federal agency
consulted in paragraph (a) of this
[[Page 46832]]
section shall recommend, in writing, to the Assistant Administrator
approval or disapproval of the application in writing. If a reviewing
agency is unable to complete its review in thirty days, it is required
to notify NOAA in writing of additional time necessary to complete the
review.
(d) If the license application is denied, the Assistant
Administrator shall provide the applicant with written notification
along with a concise statement of the facts in the record determined to
support the denial. This denial will be considered final agency action
twenty-one (21) days after the date the notice was mailed, unless the
applicant files an appeal, as provided in Sec. 960.10.
(e) The Assistant Administrator shall terminate the license
application review process if:
(1) The application is withdrawn before the decision approving or
denying it is issued; or
(2) The applicant, after receiving a request for additional
information pursuant to paragraph (c) of this section, does not provide
such information within the time stated in the request.
(f) No license shall be granted by the Secretary unless the
Secretary determines, in writing, that the applicant will comply with
the requirements of the Act, any regulations issued pursuant to the
Act, and that the granting of such license and the operation of the
license and system by the licensee would be consistent with the
national security interest, foreign policy and international
obligations of the United States.
Sec. 960.7 Amendments to licenses
(a) Prior to taking any of the following actions a licensee must
obtain an amendment to the license:
(1) assignment of any interest in or transfer of the license from
one entity to another, renaming, or any change in identity of the
license holder;
(2) change in or transfer of administrative control;
(3) change of operational control; or
(4) deviation from orbital characteristics, performance
specifications, data collection and exploitation capabilities,
operational characteristics identified under Appendix 1.C(6) of this
part, or any other change in license parameters.
(b) Applications for an amendment to an existing license shall
contain all relevant new information and shall be filed at the same
address identified in Appendix 1 of this part. Amendment applications
shall be filed in accordance with the procedures in Sec. 960.4 and
Appendix 1 of this part for original license applications.
(c) The Assistant Administrator, in consultation with other
appropriate agencies, shall review amendment applications within 120
days of the receipt of such completed applications. The Assistant
Administrator shall advise such agencies of the deadline prescribed by
paragraph (d) of this section to require additional information from
the applicant. If a determination has not been made within 120 days,
the Assistant Administrator shall inform the licensee of any pending
issues and any actions necessary to resolve them.
(d) The reviewing agencies have ten (10) working days from receipt
of the amendment request to notify the Assistant Administrator in
writing whether the request omits any of the information listed in
Appendix 1 of this part or whether additional information may be
necessary to complete the request. If these agencies cannot complete
their review in the time allotted, they must notify NOAA in writing of
the additional time needed to complete review, not to exceed ten (10)
working days. This notification shall state the specific reasons why
the additional information is sought. The Assistant Administrator shall
then notify the licensee, in writing, what information is required to
complete the amendment request. The 120 day review period prescribed in
Section 201(c) of the Act will be stopped until the Assistant
Administrator determines that the amendment request is complete.
(e) Within thirty (30) days of receipt of a complete amendment
application, as determined by the Assistant Administrator, each Federal
agency consulted in paragraph (a) of this section shall recommend, in
writing, to the Assistant Administrator approval or disapproval of the
amendment application in writing.
(f)(1) When the licensee is seeking an amendment in order to
transfer administrative control or change in the participation of the
operations of the system to a foreign person or nation, pursuant to
paragraph (a)(2) of this section, the licensee must provide the
following information:
(i) the identity, residence and citizenship of the foreign
person(s) or nation(s) who will acquire control;
(ii) the applicant's proposed plan to ensure that the licensee will
protect the operational control of the licensed system from foreign
influence and prevent technology transfer that would adversely impact
national security, foreign policy or international obligations; and
(iii) such additional information as the Assistant Administrator
may prescribe as necessary or appropriate to protect the national
security, foreign policy or international obligations of the United
States.
(2) Such an amendment request will be reviewed to determine whether
the foreign person(s) or nation(s) that will exercise administrative
control of the licensee will take no action that impairs the national
security interests, foreign policy or international obligations of the
United States.
(g) If the license amendment application is denied, the Assistant
Administrator shall provide the applicant with written notification
along with a concise statement of the facts in the record determined to
support the denial. This denial will be considered final agency action
twenty-one (21) days after the date the notice was mailed, unless the
applicant files an appeal, as provided in Sec. 960.10.
Sec. 960.8 Notification of foreign agreements
Pursuant to the Act, the 1998 Commercial Space Act and licenses
issued under this part, licensees must notify the Assistant
Administrator of any significant or substantial agreement that they
intend to enter into with any foreign nation, entity, or consortium,
not later than sixty (60) days prior to concluding the agreement.
(a) Upon notification by a licensee, pursuant to Sec. 960.11(b)(5),
the Assistant Administrator shall initiate review of the proposed
agreement in light of the national security interests, foreign policy
and international obligations of the U.S. Government.
(b) The Assistant Administrator, in consultation with other
appropriate agencies, will review the proposed foreign agreement. As
part of this review, the Assistant Administrator will ensure that the
proposed foreign agreement contains the appropriate provisions to
ensure compliance with all requirements concerning national security
interests, foreign policy and international obligations under the Act
or the licensee's ability to comply with the Act, these regulations and
the terms of the license, are appropriately accommodated in the
proposed agreement. These requirements include:
(1) The ability to implement, as appropriate, restrictions on the
foreign party's acquisition and dissemination of imagery as imposed by
the license or by the Secretary of Commerce;
(2) The obligations of the licensee to provide access to data for
the Archive; and
(3) The obligations of the licensee to convey to the foreign party
the license's
[[Page 46833]]
reporting and recordkeeping requirements and to facilitate any
monitoring and compliance activities identified in the license.
(c) Within thirty (30) days of receipt of the proposed agreement,
other agencies reviewing the agreement will notify the Assistant
Administrator that the proposed agreement sufficiently addresses the
requirements in paragraph (b) of this section or identify what changes
will need to be made to the agreement to meet these requirements.
(d)(1) Within sixty (60) days of notification by the licensee, if
the Assistant Administrator determines that a proposed agreement will
impair his or her ability to enforce the Act, or the licensee's ability
to comply with the Act, these regulations, or the terms or conditions
of the license, the licensee will be notified which terms and
conditions of the license are affected and, specifically, how the
agreement impairs their enforcement.
(2) The proposed agreement may not be implemented by the licensee
until the licensee has been advised by the Assistant Administrator that
the provisions of the proposed agreement are acceptable.
(e) Following approval of the agreement, if the factual
circumstances surrounding this transaction change, the licensee must
notify NOAA within twenty-one (21) days of the change. The licensee's
failure to notify NOAA in a timely manner may result in penalties for
noncompliance being levied, pursuant to Section 203(a)(3) of the Act.
(f) A licensee seeking to enter into a foreign agreement that would
require the modification of the terms of an existing license shall also
submit a license amendment request and the proposed foreign agreement
shall be considered in the context of the amendment review process.
Sec. 960.9 License term.
(a) Each license for operation of a system shall be valid for the
operational lifetime of the system or until the Secretary determines
that the licensee is not in compliance with the requirements of the
Act, the regulations issued pursuant to the Act, the terms and
conditions of the license, or that the licensee's activities or system
operations are not consistent with the national security, foreign
policy and international obligations of the United States.
(b) The licensee shall notify the Assistant Administrator within
seven (7) days of financial insolvency, dissolution, the demise of its
system or of its decision to discontinue system operation. Upon
notification, the Assistant Administrator will terminate the license.
However, termination will not affect the obligations of the licensee
with regard to provisions in its license, requiring the licensee to:
(1) Provide data to the Archive for the basic data set;
(2) Make data available to the Archive that the licensee intends to
purge from its holdings;
(3) Make data available to a sensed state; and
(4) Restrict acquisition and dissemination of imagery as imposed by
the license or by the Secretary of Commerce; and
(5) Manage the re-entry segment, including but not limited to, the
disposal of the system.
Sec. 960.10 Appeals/hearings.
(a) An applicant or licensee may submit a written appeal to the
Administrator involving the granting, denial, or conditioning of a
license; a license amendment; a foreign agreement; or enforcement
action under this part. The appeal must state the action(s) appealed,
must set forth a detailed explanation of the reasons for the appeal,
and must be submitted within twenty-one (21) days of the action
appealed. The appellant may request a hearing on the appeal before a
designated hearing officer.
(b) The hearing shall be held no later than thirty (30) days after
receipt of the appeal, unless the hearing officer extends the time. The
appellant and other interested persons may appear personally or by
counsel and submit information and present arguments, as determined
appropriate by the hearing officer. Hearings may be closed to the
public as necessary to protect classified or proprietary information.
Hearings shall be transcribed, and transcripts made available to the
public, as required by statute. Classified and proprietary information
shall not be included in the public transcripts. Within thirty (30)
days of the conclusion of the hearing, the hearing officer shall
recommend a decision to the Administrator.
(c) The hearing requested under paragraph (a) of this section may
be granted unless the issues being appealed involve the conduct of
military or foreign affairs functions. Determinations concerning
limitations on data collection or distribution, license conditions, or
enforcement actions necessary to meet national security concerns,
foreign policies or international obligations are not subject to a
hearing under this Section. A determination to deny an appeal/hearing
on this basis shall constitute final agency action.
(d) The Administrator may adopt the hearing officer's recommended
decision or may reject or modify it. The Administrator will notify the
appellant of the decision, and the reason(s) therefor, in writing,
within thirty (30) days of receipt of the hearing officer's recommended
decision. The Administrator's action shall constitute final Agency
action.
(e) Any time limit prescribed in this section may be extended for a
period not to exceed thirty (30) days by the Administrator for good
cause, upon his/her own motion or written request from the appellant.
(f) The licensee shall be entitled to an expedited hearing on the
review of a foreign agreement if the request is filed with the
Administrator within seven (7) days of the date of mailing of the
Assistant Administrator's notice under Sec. 960.8(d)(1). The request
shall set forth the licensee's response to the determinations contained
in the notice, and demonstrate that the time necessary to complete the
normal hearing process will jeopardize the agreement.
(1) Expedited hearings shall commence within five (5) days after
the filing of the request with the Administrator unless the
Administrator or the Hearing Officer postpones the date of the hearing
or the parties agree that it shall commence at a later time.
(2) Within five (5) days of the conclusion of the hearing, the
Hearing Officer shall prepare findings and conclusions for
consideration by the Administrator.
(3) Within fourteen (14) days after receipt of such material, the
Administrator shall issue his/her findings and conclusions and a
statement of the reasons on which they are based. This decision
constitutes final agency action.
Sec. 960.11 Conditions for operation.
(a) Each license issued for the operation of a system shall require
the licensee to comply with the Act and the regulations in this part.
The licensee shall ensure that its license information is kept current
and accurate. A licensee's failure to notify NOAA in a timely manner of
any changes to that information on which the determination to issue the
license or a subsequent licensing action was or will be made may result
in penalties for noncompliance being levied, pursuant to Section
203(a)(3) of Public Law 102-555.
(b) The following conditions, as a minimum, shall be included in
all licenses:
(1) The licensee shall operate its system in a manner that
preserves the
[[Page 46834]]
national security and observes the foreign policy and international
obligations of the United States. Specific limitations on operational
performance, including, but not limited to, limitations on data
collection and dissemination, as appropriate, will be specified in each
license.
(2) The licensee shall maintain operational control from a location
within the United States at all times, including the ability to
override all commands issued by any operations centers or stations.
(3) The licensee will maintain and make available to the Assistant
Administrator records of system tasking, operations and other data as
specified in the license for the purposes of monitoring and compliance.
Periodic reporting and record keeping requirements will be specified in
the license. The licensee shall allow the Administrator access, at all
reasonable times, to all facilities which comprise the remote sensing
space system for the purpose of conducting license monitoring and
compliance inspections.
(4) The licensee may be required by the Secretary to limit data
collection and/or distribution by the system as determined to be
necessary to meet significant national security or significant foreign
policy concerns, or international obligations of the United States, in
accordance with the procedures set forth in the Interagency MOU Fact
Sheet. During such limitations, the licensee shall, on request, provide
unenhanced restricted images on a commercial basis exclusively to the
U.S. Government using U.S. government-approved rekeyable encryption on
the down-link and shall use a data down-link format that allows the
U.S. Government access to these data during such periods.
(5) A licensee shall notify the Administrator of its intent to
enter into any significant or substantial foreign agreement, and shall
submit this agreement for review in accordance with Sec. 960.8. The
proposed agreement may not be implemented by the licensee until the
licensee has been advised by the Administrator that the document's
provisions are acceptable.
(i) Notification of any agreement that provides for an on-going or
a continuous relationship serves as notification of specific
transactions carried out within the scope of that agreement for
purposes of the regulations in this part and the Act. Such notification
does not relieve a licensee of any obligation under any other laws
including U.S. export laws or regulations to secure necessary USG
authorizations and/or licenses, to provide notification, or to comply
with other requirements.
(ii) A licensee seeking to enter a foreign agreement that would
require the modification of the terms of an existing license shall
submit a license amendment, as provided in Sec. 960.7.
(6) In accordance with Section 201 (e) of the Act and Sec. 960.12,
a licensee shall make available on reasonable commercial terms and
conditions, in accordance with the Act and Sec. 960.12, any unenhanced
data designated by the Assistant Administrator.
(7) A licensee shall provide to the U.S. Government, upon request,
a complete list of all archived, unenhanced data which has been
generated by its licensed system which is not already maintained in a
public catalog. Any information on this list which is deemed
proprietary by the licensee should be so noted by the licensee when the
list is provided to the U.S. Government.
(8) A licensee shall make available unenhanced data requested by
the National Satellite Land Remote Sensing Data Archive (``the
Archive'') in the Department of the Interior on reasonable cost terms
and conditions as agreed by the licensee and the Archive. After the
expiration of any exclusive right to sell, or after a reasonable period
of time, as agreed with the licensee, the Archive shall make these data
available to the public at a price equivalent to the cost of fulfilling
user requests.
(9) Before purging any licensed data in its possession, the
licensee shall offer such data to the Archive at the cost of
reproduction and transmission. The Archive shall make these data
available immediately to the public at a price equivalent to the cost
of fulfilling user requests.
(10) A licensee shall make available to the government of any
country (including the United States) upon request by that government,
unenhanced data collected by its system concerning the territory under
the jurisdiction of such government. The data shall be provided as soon
as the licensee is able to distribute the data commercially or as soon
as the licensee has processed them into a format that the licensee uses
for its own purposes, whichever occurs sooner, on reasonable terms and
conditions. However, no data shall be provided to the sensed state if
such release is contrary to U.S. national security concerns, foreign
policy or international obligations or is otherwise prohibited by law,
e.g. where transactions with the sensed state are prohibited by the
laws of the United States. The USG may require, as a specific license
condition, coordination with NOAA prior to fulfilling specific sensed
state requests for unenhanced data.
(11) A licensee shall inform the Assistant Administrator
immediately of any operational deviation or proposed deviation of the
system which would violate the conditions of the license. If advance
notice is not possible because of an emergency posing an imminent and
substantial threat to human life, property, the environment or the
system itself, the licensee shall notify the Assistant Administrator of
the deviation as soon as circumstances permit.
(12) A licensee shall dispose of any satellites operated by the
licensee upon termination of operations under the license in a manner
satisfactory to the President. The licensee shall obtain approval from
the Assistant Administrator of all plans and procedures for the
disposition of satellites as part of the application process.
Sec. 960.12 Data policy for remote sensing space systems.
(a) In accordance with the Act, if the U.S. Government has or will
directly fund all or a substantial part of the development,
fabrication, launch, or operation costs of a licensed system, the
license shall require that all of the unenhanced data from the system
be made available on a nondiscriminatory basis except on the basis of
national security, foreign policy or international obligations.
(b) If the U.S. Government has not funded and will not fund, either
directly or indirectly, any of the development, fabrication, launch, or
operations costs of a licensed system, the licensee may provide access
to its unenhanced data in accordance with reasonable commercial terms
and conditions, subject to the requirement of providing data to the
government of any sensed state, pursuant to Sec. 960.11(b)(10), and to
implementation of the licensee's plan, as contained in its application,
to provide widespread access to its unenhanced data for non-commercial
scientific, educational or other public benefit purposes.
(c) If the U.S. Government has (either directly or indirectly)
funded some of the development, fabrication, launch, or operations
costs of a licensed system, the Assistant Administrator, in
consultation with other appropriate U.S. agencies, shall, subject to
national security concerns, determine whether the interest of the
United States in promoting widespread availability of remote sensing
data on reasonable cost terms and conditions requires that some or all
of the unenhanced data from the
[[Page 46835]]
system be made available on a nondiscriminatory basis in accordance
with the Act. The license shall specify any data subject to this
requirement. In making this determination, the Assistant Administrator
may consider:
(1) The extent and proportion of private and federal funding of the
system;
(2) The extent of the governmental versus the commercial market for
the unenhanced data;
(3) The effect of a nondiscriminatory data access designation on
the applicant's commercial activity;
(4) The extent to which the applicant's proposed commercial data
policies would encourage foreign operators to limit access,
particularly for research and public benefit purposes; or
(5) The extent to which the U.S. interest in promoting widespread
data availability can be satisfied through license conditions that
ensure access to the data for scientific, educational, or other public
benefit purposes.
Subpart C--Prohibitions
Sec. 960.13 Prohibitions.
It is unlawful for any person who is subject to the jurisdiction or
control of the United States, directly or through any subsidiary or
affiliate to:
(a) Operate a private remote sensing space system in such a manner
as to jeopardize the national security or foreign policy and
international obligations of the United States;
(b) Operate a private remote sensing space system without
possession of a valid license issued under the Act and/or the
regulations in this part;
(c) Operate a private remote sensing space system in violation of
the terms and conditions of the license issued for such system under
the Act and the regulations in this part;
(d) Violate any provision of the Act or the regulations in this
part or any term, condition, or restriction of the license;
(e) Violate or fail to comply with any order, directive, or notice
issued by the Secretary or his/her designee, pursuant to the Act and/or
the regulations in this part, with regard to the operation of the
licensed private remote sensing space system;
(f) Fail or refuse to provide to the Secretary or his/her designee
all reports and/or information required to be submitted to the
Secretary under the Act or the regulations in this part;
(g) Fail to update the information required to be submitted to the
Secretary in the license application; or
(h) Interfere with the enforcement of this part by:
(1) Refusing to permit access by the Secretary or his/her designee
to any facilities which comprise the remote sensing space system for
the purposes of conducting any search or inspection in connection with
the enforcement of the regulations in this part;
(2) Assaulting, resisting, opposing, impeding, intimidating, or
interfering with any authorized officer in the conduct of any search or
inspection performed under the regulations in this part;
(3) Submitting false information to the Secretary, his/her designee
or any authorized officer; or
(4) Assaulting, resisting, opposing, impeding, intimidating,
harassing, bribing, or interfering with any person authorized by the
Secretary or his/her designee to implement the provisions of the
regulations in this part.
Subpart D--Enforcement Procedures
Sec. 960.14 In general.
(a) The Secretary shall conduct such enforcement activities as are
necessary to carry out his/her obligations under the Act.
(b) Any person who is authorized to enforce the regulations in this
part may:
(1) Enter, search and inspect any facility suspected of being used
to violate the regulations in this part or any license issued pursuant
to the regulations in this part and inspect and seize any equipment or
records contained in such facility;
(2) Seize any data obtained in violation of the regulations in this
part or any license issued pursuant to the regulations in this part;
(3) Seize any evidence of a violation of the regulations in this
part or of any license issued pursuant to the regulations in this part;
(4) Execute any warrant or other process issued by any court of
competent jurisdiction; and
(5) Exercise any other lawful authority.
Sec. 960.15 Penalties and sanctions.
As authorized by Section 203(a) of the Act, if the Secretary or
his/her designee determines that the licensee has substantially failed
to comply with the Act, the regulations in this part, or any term,
condition or restriction of the license, the Secretary or his/her
designee may request the appropriate U.S. Attorney to seek an order of
injunction or similar judicial determination from the U.S. District
Court for the District of Columbia Circuit or a U.S. District Court
within which the licensee resides or has its principal place of
business, to terminate, modify, or suspend the license, and/or to
terminate licensed operations on an immediate basis.
(a) In addition, any person who violates any provision of the Act,
any license issued thereunder, or the regulations in this part may be
assessed a civil penalty by the Secretary of not more that $10,000 for
each violation. Each day of operation in violation constitutes a
separate violation. All civil penalties procedures shall be in
accordance with 15 CFR part 904.
(b) Violation of the Act, this part, or any license issued under
this part, may be subject to criminal penalty provisions prescribed in
other applicable laws.
Appendix 1 to Part 960--Filing Instructions and Information To Be
Included in the Licensing Application
(a) Where to file. Applications and all related documents shall
be filed with the Assistant Administrator, National Environmental
Satellite, Data and Information Service (NESDIS), NOAA, Department
of Commerce, 1335 East West Highway, Silver Spring, Maryland 20910.
(b) Form. No particular form is required but each application
must be in writing, must include all of the information specified in
this subpart, and must be signed by an authorized principal
executive officer. In addition, applicants must submit a copy on
electronic media using commonly-available commercial word processing
software.
(c) Number of copies. One (1) copy of each application must be
submitted in a readily reproducible form accompanied by a copy on
electronic media. One (1) copy of the public summary required by
Sec. 960.5(b) must also be submitted in a readily reproducible form
accompanied by a copy on electronic media.
(d) The following information shall be filed by the applicant in
order to evaluate its suitability to hold a private remote sensing
space system license. Data provided regarding the applicant's
proposed remote sensing space system must be in sufficient detail to
enable the Secretary to determine whether the proposal meets
requirements of the Act.
Sec. I--Corporate Information
(1) The name, street address and mailing address, telephone
number and citizenship(s) of (as applicable):
(i) Applicant as well as any affiliates or subsidiaries;
(ii) Chief executive officer of the applicant and each director;
(iii) Each general corporation partner;
(iv) All executive personnel or senior management of a
partnership;
(v) Any directors, partners, executive personnel or senior
management who hold positions with or serve as consultants for any
foreign nation or person;
(vi) Each domestic beneficial owner of an interest equal to or
greater than 10 percent in the applicant;
(vii) Each foreign owner of an interest equal to or greater than
5 percent in the applicant;
(viii) Each foreign lender and amount of debt where foreign
indebtedness exceeds 25 percent of an applicants total indebtedness;
[[Page 46836]]
(ix) A person upon whom service of all documents may be made.
(2) A description of any significant or substantial agreements
between the applicant, its affiliates and subsidiaries, with foreign
nation or person, including copies if available;
(3) A copy of the charter or other authorizing instrument
certified by the jurisdiction in which the applicant is incorporated
or organized and authorized to do business.
Sec. II--Launch Segment Information
Provide the characteristics of the launch segment to include:
(1) proposed launch schedule;
(2) proposed launch vehicle source;
(3) proposed launch site;
(4) anticipated operational date;
(5) the range of orbits and altitudes (nominal apogee and
perigee);
(6) inclination angle;
(7) orbital period;
Sec. III--Space Segment
(1) the number of satellites which will compose this system;
(2) provide technical space system information at the level of
detail typical of a request for proposal specification;
(3) Anticipated best theoretical resolution (show calculation);
(4) Swath width of each sensor (typically at nadir);
(5) the various fields of view for each sensor (IFOV, in-track,
cross-track);
(6) on-board storage capacity;
(7) navigation capabilities--GPS, star tracker accuracies;
(8) time-delayed integration with focal plane;
(9) oversampling capability;
(10) image motion parameters--linear motion, drift; aggregation
modes;
(11) anticipated system lifetime.
Sec. IV--Ground Segment
(1) The system data collection and processing capabilities
proposed including but not limited to: tasking procedures;
scheduling plans; data format (downlinked and distributed data);
timeliness of delivery; ground segment information regarding the
location of proposed operations centers and stations, and tasking,
telemetry and control; data distribution and archiving plans;
(2) The command (uplink and downlink) and mission data
(downlink) transmission frequencies and system transmission (uplink
and downlink) footprint, the downlink data rate, any plans for
communications crosslinks;
(3) The plans for protection of uplink, downlink and any data
links;
(4) The methods applicant will use to ensure the integrity of
its operations, including plans for: positive control of the remote
sensing space system and relevant operations centers and stations;
denial of unauthorized access to data transmissions to or from the
remote sensing space system; and restriction of collection and/or
distribution of unenhanced data from specific areas at the request
of the U.S. Government.
Sec. V--Other Information
A. The applicant's plans for providing access to or distributing
the unenhanced data generated by the system including:
(1) a description of the plan for the sale and distribution of
such data;
(2) the method for making the data available to governments
whose territories have been sensed;
(3) a description of the plans for making data requested and
purchased by the Department of the Interior available to the Archive
for inclusion in the basic data set; and
(4) the licensee's plans to make the data available for non-
commercial scientific, educational, or other public benefit
purposes, such as the study of the changing global environment.
B. If the applicant is proposing to follow a commercial data
distribution and pricing policy as provided for by Sec. 960.12, the
application shall include the following additional financial
information:
(1) the extent of the private investment in the system;
(2) the extent of any direct funding or other direct assistance
which the applicant or its affiliates or subsidiaries have received
or anticipate receiving from any agency of the U.S. Government for
the development, fabrication, launch, or operation of the system
including direct financial support, loan guarantees, or the use of
U.S. Government equipment or services;
(3) any existing or anticipated contract(s) between the
applicant, affiliate, or subsidiary and U.S. Government agencies for
the purchase of data, information, or services from the proposed
system;
(4) any other relationship between the applicant, affiliate, or
subsidiary and the U.S. Government which has supported the
development, fabrication, launch, or operation of the system; and
(5) any plans to provide preferred or exclusive access to the
unenhanced data to any particular user or class of users.
C. The applicant will submit a plan for post-mission disposition
of any remote-sensing satellites owned or operated by the applicant.
If the satellite disposition involves an atmospheric re-entry the
applicant must provide an estimate of the total debris casualty area
of the system's components and structure likely to survive re-entry.
Appendix 2 to Part 960--Fact Sheet Regarding the Memorandum of
Understanding Concerning the Licensing of Private Remote Sensing
Satellite Systems Dated February 2, 2000
The White House, Office of Science and Technology Policy and National
Security Council
February 2, 2000.
FACT SHEET REGARDING THE MEMORANDUM OF UNDERSTANDING CONCERNING THE
LICENSING OF PRIVATE REMOTE SENSING SATELLITE SYSTEMS
A Memorandum of Understanding (MOU) has been concluded between
the Departments of Commerce, State, Defense, Interior and the
Intelligence Community regarding interagency procedures on
commercial remote sensing systems.
Background
The Secretary of Commerce, through the National Oceanic and
Atmospheric Administration, is responsible for administering the
licensing of private remote sensing satellite systems pursuant to
the Land Remote Sensing Policy Act of 1992. The Act also grants to
the Secretaries of State and Defense the authority to determine
conditions necessary to protect international obligations, foreign
policy concerns, and national security concerns. The purpose of the
MOU is to establish interagency procedures concerning the process
for handling remote sensing licensing actions, and consultation
regarding interruption of normal commercial operations consistent
with the President's policy on remote sensing.
In consultation with affected agencies, limitations on
commercial remote sensing systems will be imposed by the Secretary
of Commerce when necessary to meet international obligations and
national security and foreign policy concerns and will be in accord
with the determinations of the Secretary of Defense and the
Secretary of State and with applicable law. Procedures for
implementing this policy are set out below.
Procedures
A. Consultation during Review of Licensing Actions.
Pursuant to section 5621(c) of the Land Remote Sensing Policy
Act of 1992, the Secretary of Commerce shall review any application
and make a determination thereon within 120 days of receipt of such
application. If final action has not occurred within such time, then
the Secretary shall inform the applicant of any pending issues and
of actions required to resolve them. Copies of requests for
licensing actions received by the Department of Commerce (DOC) will
be provided by DOC to the Department of State (DOS), the Department
of Defense (DOD), the Department of the Interior (DOI), and the
Intelligence Community (IC) within 3 working days.
DOC will defer its decision on such licensing actions until the
other Parties concerned have had a reasonable time to review them,
as provided in this section.
(1) Within 10 working days of receipt, DOS, DOD, DOI, or IC
shall notify the Department of Commerce, in writing, of any
additional information it believes is necessary to properly evaluate
the licensing action, or notify DOC in writing of the additional
time, not to exceed 10 working days, necessary to complete the
review. This notification shall state the specific reasons why the
additional information is sought.
(2) After receiving a complete license package or the
information requested in paragraph (1), DOS, DOD, DOI, and IC will
complete their review of the license package within 30 days or
notify DOC in writing of additional time necessary to complete the
review. If DOS, DOD, or IC conclude that imposition of conditions on
the actions being reviewed may be necessary to protect international
obligations, foreign policy concerns, or national security concerns,
the agency identifying the concern will promptly notify DOC in
writing with a copy to other
[[Page 46837]]
interested agencies. Such notification shall: (i) describe the
national security interests, or the international obligations or
specific foreign policies at risk if the applicant's system is
approved as proposed; (ii) set forth in detail the basis for the
conclusion that operation of the applicant's system as proposed will
not preserve the national security interests or the international
obligations or specific foreign policies identified; and (iii)
specify the additional conditions necessary to preserve the relevant
United States interests or set forth in detail why denial is
required to preserve such interests.
(3) Within 10 days of sending this notification, representatives
of DOS, DOD, DOC, DOI, and IC will meet to discuss and resolve any
issues with regard to these proposed conditions.
(4) If, after such discussions, DOS or DOD conclude that such
conditions are necessary but DOC does not concur, the Secretary of
State or the Secretary of Defense may make such a determination of
necessary conditions in writing. This function may not be delegated
below the acting Secretary or the Deputy Secretary. Such
determinations will be promptly forwarded to DOC and a copy will be
provided to the Assistant to the President for National Security
Affairs and the Assistant to the President for Science and
Technology.
(5) Upon notification of such a determination, DOC will suspend
any further action on the license that would be inconsistent with
the DOS or DOD determination. If the Secretary of Commerce believes
the limits defined by another Secretary are inappropriate, the
Secretary of Commerce or Deputy Secretary shall then consult with
his or her counterpart in the relevant department within 10 days
regarding any unresolved issues. If the relevant Secretaries are
unable to resolve any issues, the Secretary of Commerce will so
notify the Assistant to the President for National Security Affairs,
who, in coordination with the Assistant to the President for Science
and Technology, will seek to achieve a consensus within the
interagency, or failing that, by referral to the President. All
efforts will be taken to resolve the dispute within 3 weeks of its
submission to the Assistant to the President for National Security
Affairs and the Assistant to the President for Science and
Technology.
B. Consultation Regarding Interruption of Normal Commercial Operations
(1) This section establishes the process for requiring the
licensee to limit data collection and/or distribution by the system
during periods when national security or international obligations
and/or foreign policies may be compromised, as determined by the
Secretary of Defense or the Secretary of State. DOC will provide to
the other Parties copies of licensee correspondence and documents
that describe how the licensee will comply with such interruptions
of its commercial operations.
(2) Conditions should be imposed for the smallest area and for
the shortest period necessary to protect the national security,
international obligations, or foreign policy concerns at issue.
Alternatives to prohibitions on collection and/or distribution shall
be considered such as delaying the transmission or distribution of
data, restricting the field of view of the system, encryption of the
data if available, or other means to control the use of the data.
(3) Except where urgency precludes it, DOS, DOD, DOC and IC will
consult to attempt to come to an agreement concerning appropriate
conditions, if any, to be imposed on the licensee in accordance with
determinations made by DOS or DOD. Consultations shall be
constructed so that, in the event an agreement cannot be reached at
the staff level, sufficient time will remain to allow the Secretary
of Commerce to consult personally with the Secretary of State or the
Secretary of Defense, as appropriate, prior to the issuance of a
determination by the Secretary of State or the Secretary of Defense
in accordance with (4) below. That function shall not be delegated
below the acting Secretary.
(4) After such consultations, or when the Secretary of State or
the Secretary of Defense specifically determines that urgency
precludes consultation with the Secretary of Commerce, the Secretary
of State or the Secretary of Defense, shall determine the conditions
necessary to meet international obligations, significant foreign
policy concerns, or significant national security concerns,
especially where those interests identified in the National Security
Strategy would be put at risk. This function shall not be delegated
below the acting Secretary. The Secretary of State or the Secretary
of Defense will provide to the Secretary of Commerce his or her
determination regarding the conditions required to be imposed on the
licensee. The determination will describe the international
obligations, specific foreign policy, or national security interest
at risk. Upon receipt of the determination, DOC shall immediately
notify the licensee of the imposition of limiting conditions on
commercial operations. Copies of the determination and any
implementing DOC action will be provided promptly to the Assistant
to the President for National Security Affairs and the Assistant to
the President for Science and Technology.
(5) If the Secretary of Commerce believes the conditions
determined by another Secretary are inappropriate, he or she will,
simultaneous with notification of, and imposition of such conditions
on, the licensee, so notify the Secretary of Defense or the
Secretary of State, as appropriate, the Assistant to the President
for National Security Affairs, and the Assistant to the President
for Science and Technology. The Assistant to the President for
National Security Affairs, in coordination with the Assistant to the
President for Science and Technology, will initiate as soon as
possible a Principals-level consultative process to achieve a
consensus within the interagency, or, failing that, refer the matter
to the President for decision. All efforts will be taken to resolve
the disagreement within 7 working days of its submission to the
Assistant to the President for National Security Affairs and the
Assistant to the President for Science and Technology.
C. Coordination Before Release of Information Provided or Generated by
Other Agencies
Before releasing any information provided or generated by
another agency to a licensee or potential licensee, to the public,
or to an administrative law judge, each agency agrees to consult
with the agency that provided or generated the information. The
purpose of such consultations will be to review the propriety of any
proposed release of information that may be privileged because it is
classified, pre-decisional, deliberative, contain proprietary
information, or is protected for other reasons. No information shall
be released without the approval of the agency that provided or
generated it unless required by law.
D. No Legal Rights or Remedies, or Legally Enforceable Causes of
Action, are Created or Intended to be Created by the MOU.
[FR Doc. 00-18725 Filed 7-28-00; 8:45 am]
BILLING CODE 3510-HR-P