[Federal Register Volume 68, Number 67 (Tuesday, April 8, 2003)]
[Proposed Rules]
[Pages 16993-16998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8184]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 911

[Docket No. 030220035-3035-01]
RIN 0648-AQ55


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

AGENCY: National Environmental Satellite, Data, and Information Service 
(NESDIS), National Oceanic and Atmospheric Administration (NOAA), 
Department of Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: The proposed rule will amend NOAA's policies and procedures 
regarding space-based data collection systems (DCS) to allow expanded 
use of the NOAA DCS for government interests and to permit greater 
flexibility in utilizing these vital U.S. data collection assets in 
support of homeland security, National security, law enforcement, and 
humanitarian operations.

DATES: Submit comments on or before May 8, 2003.

ADDRESSES: Written comments on the proposed rule should be sent to: Kay 
Metcalf, NOAA, NESDIS, Direct Services Division, E/SP3, Room 3320, FB-
4, 5200 Auth Road, Suitland, Maryland 20746-4304.

FOR FURTHER INFORMATION CONTACT: Kay Metcalf at (301) 457-5681, e-mail: 
[email protected]; or Glenn Tallia at 301-713-1337, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: NOAA enacted 15 CFR Part 911, effective June 
5, 1998, to revise its policies and procedures for authorizing the use 
of the space-based DCS that operate on NOAA's Geostationary Operational 
Environmental Satellites (GOES) and on its Polar-orbiting Operational 
Environmental Satellites (POES). For general background on NOAA DCS, 
refer to the notice of final rulemaking published in the Federal 
Register on May 6, 1998, at 63 FR 24917.
    The current regulations enacted in 1998 revised the policy on the 
use of the GOES DCS and formalized a new policy for the use of the 
Argos Data Collection and Location System (Argos DCS) which flies on 
the POES. There are two fundamental principles underlying NOAA's DCS 
rule: (1) The Government will not allow its space-based DCS to be used 
where there are commercial space-based services available that fulfill 
user's requirements; and (2) NOAA DCS will be used predominantly for 
environmental applications.
    The current regulations provide for non-environmental use of the 
Argos DCS in two instances: (1) Episodic uses, where there is the 
significant possibility of loss of life, which is consonant with NOAA's 
(and all U.S. Government agencies') inherent public safety mission; and 
(2) for government users and for non-profit users where there is a 
governmental interest, particularly in instances where the use of 
commercial services is not appropriate due to the sensitive nature of 
the applications (such as for National security or law enforcement 
purposes). Non-environmental use of the Argos DCS is limited to no more 
than five percent of the system's total use.

Explanation of Changes

    The tragic events of September 11, 2001, precipitated a need to 
provide more flexibility in utilizing these vital United States data 
collection assets in support of homeland security, National security, 
law enforcement and humanitarian operations. The proposed changes will 
facilitate the expanded use of the NOAA DCS for government interests in 
these areas.
    Nonetheless, the proposed revisions do not change the underlying 
policy that the use of the NOAA DCS will only be authorized where it is 
determined that there are no commercial space-based services available 
to meet the users' requirements. Furthermore, there will be no change 
in the general policy that the NOAA DCS will be used predominantly for 
environmental applications and that any exceptions to the general 
policy will be closely monitored by NOAA.
    A subcategory of non-environmental use termed ``sensitive use'' 
would be established and will be inserted as new subsection 911.3(p). 
This new subcategory would be added to address those situations where 
the user is either a governmental entity or a non-profit organization 
with a governmental interest, and where the user's requirements dictate 
the use of a governmental system for reasons such as National security, 
homeland security, law enforcement, and humanitarian operations.
    Current subsection 911.3(p), ``testing use,'' is renumbered as 
911.3(q) and changes have been made to correct a typographical error in 
the text of the CFR wherein part of the definition was repeated.
    Current subsection 911.3(q), ``user,'' is renumbered as 911.3(r) 
and a new clause is added to the definition to include the organization 
requiring collection of the data within the definition of ``user.''
    Current subsection 911.3(r), ``user platform,'' is renumbered as 
911.3(s).
    Current subsection 911.3(s), ``user requirement,'' is renumbered as 
911.3(t).
    Subsection 911.4(c)(3) is changed to recognize non-environmental 
use, in those limited situations where it is allowed, for both types of 
NOAA DCS (Argos DCS and GOES DCS). Non-environmental use of the NOAA 
DCS systems will be limited to episodic use and to sensitive use. The 
five percent cap on non-environmental use of Argos DCS is removed to 
permit greater discretion for sensitive and episodic use of the system 
(subject to capacity limitations) on an as-needed basis.

[[Page 16994]]

    In subsection 911.4(c)(4), episodic use is now recognized for all 
NOAA DCS, not just Argos DCS.
    Subsection 911.5(c) is amended by inserting ``for System Use 
Agreements and renewals'' following ``user requests'' to clarify which 
user requests are covered.
    Subsection 911.5(e)(1) is amended by inserting ``environmental'' 
before the word ``data.''
    Subsection 911.5(e)(3) and 911.5(e)(4) are added to define the 
period of performance for non-environmental use of GOES DCS.
    Section 911.6 has been revised to ensure that users are on notice 
regarding the open data transmission aspects of the NOAA DCS. The 
proposed regulation amends section 911.6 as follows:
    [sbull] Subsection 911.6(a) is amended to require users to permit 
NOAA and other agencies to make ``appropriate use as determined by 
NOAA'' of the data;
    [sbull] Subsection 911.6(a) is further amended by inserting 
``environmental'' before ``data'' to clarify which data will be subject 
to ``full, open, timely, and appropriate use'' by NOAA and other U.S. 
Government agencies;
    [sbull] Subsection 911.6(a) also is amended to delete the last 
sentence in the current rule which refers to the protection of 
proprietary data (new subsections 911.6(b) and (c), below, will address 
this issue);
    [sbull] A new subsection 911.6(b) is inserted to provide notice 
that the raw data from the NOAA space segment is openly transmitted and 
accessible; and
    [sbull] A new subsection 911.6(c) is inserted to provide notice 
regarding the accessibility of NOAA DCS data during the ground segment.
    The new provisions in 911.6 put users on notice that NOAA can only 
control data distribution once it is received at NOAA ground stations 
and, even then, only within the design limitations of the ground system 
segment. The revised rule notifies DCS users that raw data may be 
openly received during the space segment transmission of the data where 
access is not controlled. After the data is received, access to the 
processed data from the ground segment is affected by the user' 
specifications and the system design limitations.
    Appendix A (Argos DCS Use Policy Diagram) and Appendix B (GOES DCS 
Use Policy Diagram) have been updated to incorporate the effects of the 
proposed changes on the NOAA DCS system use policy.

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

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that the proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    The factual basis for this certification is as follows. A 
fundamental principle underlying NOAA's DCS rule is that Government 
will not allow its space-based DCS to be used where there are 
commercial space-based services available that fulfill user's 
requirements. Moreover, the proposed rule provides for non-
environmental use of the NOAA DCS in two discrete situations, one 
involving episodic uses in instances where there is a significant 
possibility of loss of life, and the other where there is a 
governmental interest and the use of commercial services is not 
appropriate due to the sensitive nature of the applications, such as 
for National security or law enforcement purposes. Thus the proposed 
rules are not expected to impact small businesses. As such, no initial 
regulatory flexibility analysis has been prepared.

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

    This rule contains collection-of-information requirements subject 
to the Paperwork Reduction Act (PRA). The collection of this 
information has been approved under OMB Control Number 0648-0157.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with a collection of information, subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    The public reporting burden for this collection of information is 
estimated to average 3 hours per GOES agreement and 1 hour per Argos 
agreement, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information. Send comments 
regarding this collection of information to Kay Metcalf, NOAA, National 
Environmental Satellite, Data, and Information Service, Direct Services 
Division, E/SP3, Room 3320, FB-4, 5200 Auth Road, Suitland, Maryland 
20746-4304; and to OMB at the Office of Information and Regulatory 
Affairs, Washington, D.C. 20503 (Attention: NOAA Desk Officer).

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

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

Executive Order 12866

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

List of Subjects in 15 CFR Part 911

    Scientific equipment, Space transportation and exploration.

    Dated: March 28, 2003.
Gregory W. Withee,
Assistant Administrator for Satellite and Information Services, 
National Oceanic and Atmospheric Administration, Department of 
Commerce.

    For the reasons set out in the preamble, 15 CFR part 911 is 
proposed to be amended as follows:

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

    1. The authority citation for part 911 continues to read as 
follows:

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

    2. Revise Sec.  911.3(p), (q), (r), and (s) and add paragraph (t) 
as follows:


Sec.  911.3  Definitions.

* * * * *
    (p) Sensitive use means the use of the NOAA DCS where the users' 
requirements dictate the use of a governmental system such as National 
security, homeland security, law enforcement and humanitarian 
operations.
    (q) Testing use means the use of the NOAA DCS by manufacturers of 
platforms for use in conjunction with the NOAA DCS, for the limited 
purpose of testing and certifying the compatibility of new platforms 
with the technical requirements of the NOAA DCS.
    (r) User means the entity and/or organization that owns or operates 
user platforms for the purpose of collecting and transmitting data 
through the NOAA DCS, or the organization requiring the collection of 
the data.
    (s) User platform means device designed in accordance with the 
specifications delineated and approved by the Approving Authority used 
for the in-situ collection and subsequent transmission of data via the 
NOAA DCS.

[[Page 16995]]

Those devices which are used in conjunction with the GOES DCS are 
referred to as data collection platforms (DCP) and those which are used 
in conjunction with the Argos DCS are referred to as Platform 
Transmitter Terminals (PTT). For purposes of these regulations, the 
terms ``user platform,'' ``DCP'', and ``PTT'' are interchangeable.
    (t) User requirement means the requirement expressed and explained 
in the System Use Agreement.
    3. Revise Sec.  911.4(c)(3) and (c)(4) as follows:


Sec.  911.4  Use of the NOAA Data Collection Systems.

* * * * *
    (c) * * *
    (3) Except as provided in paragraph (c)(4) of this section, non-
environmental use of the NOAA DCS is only authorized for government use 
and non-profit users where there is a government interest. The NOAA DCS 
will continue to be predominantly used for environmental applications. 
Non-environmental use of the system shall be limited to sensitive use, 
and to episodic use as defined below in paragraph (c)(4) of this 
section.
    (4) Episodic use of the NOAA DCS may also be authorized in specific 
instances where there is a significant possibility for loss of life. 
Such use shall be closely monitored.
* * * * *
    4. Revise Sec.  911.5(c) and (e)(1), and add new paragraphs (e)(3), 
and (e)(4) as follows:


Sec.  911.5  NOAA Data Collection Systems Use Agreements.

* * * * *
    (c) The Director shall evaluate user requests for System Use 
Agreements and renewals and conclude agreements for use of the NOAA 
DCS.
* * * * *
    (e)
    (1) Agreements for the collection of environmental data, by the 
GOES DCS, shall be valid for 5 years from the date of initial in-situ 
deployment, and may be renewed for additional 5-year periods.
* * * * *
    (3) Agreements for the collection of non-environmental data, via 
the GOES DCS, by government agencies, or non-profit institutions where 
there is a government interest, shall be valid for 1 year from the date 
of initial in-situ deployment of the platforms, and may be renewed for 
additional 1-year periods.
    (4) Agreements for the episodic collection of non-environmental 
data, via the GOES DCS under Sec.  911.4(c)(4), shall be of short, 
finite duration not to exceed 1 year without exception, and usually 
shall not exceed 6 months. These agreements shall be closely monitored 
and shall not be renewed.
    5. Revise Sec.  911.6 to read as follows:


Sec.  911.6  Treatment of data.

    (a) All NOAA DCS users must agree to permit NOAA and other agencies 
of the U.S. Government the full, open, timely, and appropriate use as 
determined by NOAA, of all environmental data collected from their 
platforms; this may include the international distribution of 
environmental data under the auspices of the World Meteorological 
Organization.
    (b) Raw data from the NOAA space segment is openly transmitted and 
accessible.
    (c) Accessibility of the NOAA DCS processed data from the ground 
segment is handled in accordance with the users specifications and 
system design limitations, subject to the provisions stated in 
paragraph (a) of this section.
    6. Revise Appendix A to Part 911 as follows:
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    7. Revise Appendix B to Part 911 as follows:

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[FR Doc. 03-8184 Filed 4-7-03; 8:45 am]
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