[Federal Register Volume 62, Number 212 (Monday, November 3, 1997)]
[Proposed Rules]
[Pages 59317-59331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28948]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 960
[Docket No. 951031259-7103-02]
Licensing of Private Land Remote-Sensing Space Systems
AGENCY: National Oceanic and Atmospheric Administration, Commerce.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA)
proposes regulations revising its regime for the licensing of private
Earth remote-sensing space systems under Title II of the Land Remote
Sensing Policy Act of 1992, 15 U.S.C. 5601 et seq. (1992 Act). These
proposed regulations implement the licensing provisions of the 1992 Act
and the Presidential Policy announced March 10, 1994. They are intended
to facilitate the development of the U.S. commercial remote-sensing
industry and thus promote the collection and widespread availability of
Earth remote sensing data while preserving essential U.S. national
security, international obligations and foreign policy interests. A
fundamental principle is that restrictions imposed on a licensee must
appropriately balance promoting competitive capabilities of U.S.
commercial firms and the protection of national security, international
obligations and foreign policy. The proposed regulations also describe
when a system, though privately owned, has received sufficient
financial or other support from the U.S. Government that the operator
may have to comply with a nondiscriminatory data access policy that
applies to all Government systems. These regulations reflect that
policy.
DATES: Comments must be received by January 2, 1998.
ADDRESSES: Comments should be sent to, Charles Wooldridge, NOAA,
National Environmental Satellite, Data, and Information Service, 1315
East-West Highway, Room 3620, Silver Spring, MD 20910-3282.
FOR FURTHER INFORMATION CONTACT: Charles Wooldridge at (301) 713-2024,
ext. 107 or Kira Alvarez, NOAA, Office of General Counsel at (301) 713-
1217.
SUPPLEMENTARY INFORMATION: Tile II of the 1992 Act authorizes the
Secretary of Commerce (Secretary) to issue licenses for operation of
private remote sensing space systems. The authority to issue licenses
has been delegated to the Administrator of NOAA and redelegated to the
Assistant Administrator for Satellite and Information Services.
On July 10, 1987, NOAA published final regulations (1987
Regulations) implementing Title IV of the Land Remote Sensing Act of
1984 (the 1984 Act) setting forth the requirements for obtaining a
license. In 1988 the Radio Television News Directors Association
(RTNDA) filed a Petition for Rulemaking requesting NOAA to reopen these
regulations in light of the President's January 5, 1988 Decision
Directive encouraging commercial space development. On January 18,
1989, NOAA responded to this Petition, agreeing to reopen the
rulemaking and incorporate certain principles favorable to commercial
development that were consistent with the Directive. see 54 FR 1995.
Shortly thereafter, Congress began to review the 1984 Act and, on
October 28, 1992, enacted the 1992 Act which repealed and succeeded the
1984 Act. The 1992 Act made significant changes to the 1984 Act,
particularly with regard to the latter's requirement that all
unenhanced data must be provide on a nondiscriminatory basis. The 1992
Act also provided for judicial review of
[[Page 59318]]
certain licensing and enforcement actions.
On March 10, 1994, the President announced a Policy Decision (the
``President's Policy'') to ``support and enhance U.S. competitiveness
in the field of remote sensing space capabilities while at the same
time protecting U.S. interests in the national security and
international obligations.'' This policy adopted a number of principles
that promote an appropriate balance between these interests.
On December 4, 1995 a Notice of Inquiry and Request for Public
Comment was published in the Federal Register (60 FR 62054), wherein
NOAA sought public comment to determine the extent the 1987 Regulations
needed revision to conform to the President's Policy and the 1992 Act,
and, if so, which issues should be addressed. NOAA received seven sets
of comments (see 61 FR 24480). On May 15, 1996, NOAA published a Notice
of Public Hearing in the Federal Register (61 FR 24480) announcing a
public hearing to be held at the Department of Commerce on June 14,
1996. The main theme that emerged at the public hearing was the request
of commercial representatives for transparency and predictability in
the regulations.
The regulations proposed herein update the 1987 Regulations to
reflect these intervening events and information gathered through the
public comment process, as well as the experience gained in the
issuance of licenses over the last five years. When finalized, these
regulations will apply to all existing licenses, as well as to all
pending license applications (i.e. those applications which are
currently being reviewed and for which no license has yet been issued)
and will apply to all future applications to operate a private remote
sensing system. The intent of the proposed regulations is to promote
the development of the commercial remote sensing industry by keeping
Government oversight to the minimum necessary to ensure protection of
U.S. national security, international obligations and foreign policy
interests. In addition, it is the intent of these regulations to make
U.S. Government policies regarding remote sensing and established
timeliness, predictable and transparent to licensees and applicants. An
underlying premise is that helping the U.S. industry to lead this
emerging market supports the long term national security, international
obligation and foreign policy interests of the United States.
Major Revisions
1. National Security and Foreign Policy Considerations
The regulations incorporate the basic regulatory principle that any
restrictions on a licensee, including those required for national
security, international obligations and foreign policy purposes, should
be the least burdensome possible to achieve the stated objective
Sec. 960.10(a)). This was one of the two principles previously
recognized in the January 18, 1989, response to the RTNDA Petition for
Rulemaking and is reflected in the President's Policy.
Proposed Sec. 960.10(a) sets forth a presumption that, in the case
of systems whose operational capabilities are similar to those of
systems already licensed, national security, international obligations
and foreign policy concerns can be resolved through license conditions
similar to those established by the President's Policy and described in
Secs. 960.9 and 960.10 without the necessity of permanently barring any
area from sensing. For systems whose operational capabilities exceed
those of systems already licensed, the Government will make every
effort to resolve any national security, international obligation and
foreign policy concerns that may arise in review of license
applications with license conditions rather than by denying the
license.
Section 960.10(b) sets forth the basic license condition that has
been designed to preserve national security, international obligations
and foreign policy interests. This condition was established in the
first license issued after the 1992 Act, refined slightly in the
President's Policy, and is contained in all licenses issued since then.
This condition provides that the Secretary of Commerce may require the
licensee to stop imaging an area and/or stop distributing data of an
area after being informed by the Secretary of Defense or State, as
appropriate, that a period exists when national security, international
obligations or foreign policy interests may be compromised. It should
be noted that the consultation and decisionmaking must take place at
the Secretarial level, thus ensuring that invoking this provision will
be invoked only at the highest levels within the U.S. Government. The
decision will take into account the potential negative economic impact
of interrupting commercial operations.
In reaching determinations as to whether the unrestricted data
collection and distribution capabilities of a licensed commercial
remote sensing system would adversely affect the U.S. national
security, international obligations and/or foreign policies, the
Secretary of Defense or Secretary of State will exercise his or her
judgment in light of the existing or emerging international situation.
Of particular concern will be situations in which: (a) A condition of
crisis or war exists or is developing and this condition poses an
immediate and serious threat to U.S. or allied national security
objectives such as affecting the lives or resources of U.S. or allied
personnel; (b) a condition of crisis or serious impairment to U.S.
international obligations or foreign policy exists or is developing and
this condition poses an immediate serious and permanent threat to U.S.
or allied relations with one or more foreign countries; (c) an
adversary's ability to receive and exploit the data from the licensee's
system contributes to the threat U.S. or allied national security
objectives, concerning military planning and operations, or to
implement international obligations, taking into account the ability of
the adversary to receive and exploit similar data from other sources.
Subsection (c) also includes additional criteria that reflect the
principle that restrictions be the least burdensome possible to achieve
the stated objective: restrictions will be imposed on the smallest area
and during the shortest period of time possible; alternatives to the
complete suspension of operations such as delaying transmission of data
and/or restricting the field of view will be considered; and the
distribution of data will generally not be restricted if comparable
data is otherwise available from foreign systems with comparable
resolution and accessibility over which the U.S. has no jurisdiction or
control.
The regulations implementing this condition recognize the need for
close coordination between the U.S. Government and the licensee during
periods when concerns relating to national security, international
obligations and foreign policies have been raised.
Subsection (d) allows (but does not require) the inclusion in a
license of a related condition, also derived from the President's
Policy, that ensures that, during periods when imaging or data
distribution are restricted for national security, international
obligations or foreign policy purposes under subsection (c), on request
the licensee will provide the data exclusively to the U.S. Government
by means of government furnished rekeyable encryption on the downlink.
This condition makes commercial remote sensing assets available as
appropriate
[[Page 59319]]
to enhance U.S. Government national security capabilities. Subsection
(e) provides that technical modifications needed to meet this condition
may be required to be paid for by the requesting agency in accordance
with section 507(d) of the Act.
2. Changes in Data Policy
A major change made by the 1992 Act was to remove the 1984
requirement that all private operators must make their unenhanced data
available on a nondiscriminatory basis. The 1992 Act retains this
requirement of essentially Governmental systems, such as the Landsat
system and those systems that are substantially funded by the U.S.
Government, but allows the operator of a non-governmental system to
follow normal commercial practices unless U.S. interests dictate
otherwise. (section 201(e), 202(b)(3), and 501).
Section 960.11 of the regulations implements this change within the
Act's overall objective of making environmental data available to the
widest possible spectrum of users, particularly for scientific and
operational purposes in support of the public good. 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 (Sec. 960.11(a)). 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 OMB Circular A-130, that data paid for by the taxpayer
is a public good to be made equally available to all members of the
public see 44 U.S.C. 3506(d).
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, subject to national security,
international obligations and foreign policy concerns, as discussed
below (Sec. 960.11(b)). These licensees will be encouraged to promote
access to their data on as widespread a basis as 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 overall 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 United States Government as a normal customer
of the licensee would not constitute funding or support for purposes of
this section.
The third category of licensees falls between the first two and
consists of those for whom the U.S. Government provides some support.
Here, the Government's interest is more significant, because of the
investment by the taxpayer and the possible precedential effect hat
permitting restricted access could have on future U.S. access to the
data from foreign 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
scientific, educational or other non-commercial purposes supporting the
public good. 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 frequently can be addressed through terms and conditions
in the license that do not require full nondiscriminatory data access
policy. For example, it may be possible to accommodate such interests
by ensuring access for research, education, and other governmental
purposes, while protecting a licensee's commercial options.
3. The Sensed State Provision
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 basic international principle,
contained in 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 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 terms
and conditions as soon as such data are available; consistent with
national security, international obligations and foreign policy of the
U.S.
Section 960.9(c) of the proposed regulations incorporates this
requirement and discusses 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. researcher, commercial end user, and value-
added redistributor, at different prices is reasonable provided the
data is available to the sensed state on the most favorable terms
available to any member of the class appropriate to the intended use by
that state.
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 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
(Sec. 960.9(c)(3)(D)).
4. Procedural Changes
The existing regulations state that they are intended to provide
the ``minimum practicable procedures'' for licensing private operators
of remote sensing space systems. In order to promote the growth of the
U.S. remote sensing industry, U.S. Government review of license
applications and foreign agreements must be as efficient and
expeditious as possible. Congress recognized this need by establishing
certain statutory deadlines for U.S. Government administrative action.
The Government's remote sensing policy with regards to preserving
national security, international obligations and foreign affairs
interests should be clear and predictable. Predictability is critical
in terms of the conditions that may require restrictions on imaging
after a system is operational. The provisions of the regulations
describing these conditions are discussed under number 1 above and set
forth at Sec. 960.10.
[[Page 59320]]
The proposed regulations clearly state, and are intended to promote
adherence to, the time limits that Congress has established for these
reviews.
The specific process by which the various agencies of the U.S.
Government will interact in the review of a license and amendment
applications, significant or substantial foreign agreement, and
determinations concerning the restrictions and limitation on imaging
and data collection, will be established in a Memorandum of
Understanding (MOU) among the agencies. The MOU will specify that
disagreements among the agencies will be decided by the President. To
promote transparency and predictability of government action in these
procedures, we expect that the MOU will be publicly available. The MOU
will be finalized by the time of issuance of a final rule.
Section 960.6 of both the existing and proposed regulations require
a license applicant to supply the NOAA Administrator with sufficient
information about a proposed remote-sensing space system's orbit and
data collection characteristics to determine that a system will be
operated in a manner that preserves the national security and
international obligations of the United States.
Section 960.8(f) allows the applicant to request a hearing before
an Administrative Law Judge (ALJ) regarding any adverse action on a
license application. The documentation in the record will serve as the
basis for the ALJ's determination as to whether the Administrator's
action regarding any conditions imposed on the license, denial of the
license, or a decision that no action can be taken within the required
limit, was appropriate.
Section 960.12 sets forth regulations for the review of proposed
significant and substantial foreign agreements between licensees and
foreign nations or persons for which notification is required pursuant
to section 202(b)(6) of the Act and Sec. 960.9(g) of these regulations.
We would note that the Act does not expressly confer the right to
approve foreign agreements, but it is our interpretation that the
Secretary has sufficient authority under the statute to prevent a
licensee from entering into an agreement that violates the national
security, international obligation or foreign policy interests of the
United States. Accordingly, submission and approval of these will be a
condition of the license (960.9(c)).
To provide due process, the regulations treat negative advice to a
licensee concerning a proposed foreign agreement as an ``adverse
action'' under section 203(b) of the Act, which grants the right to a
hearing on the record for certain actions, e.g., denying or
conditioning a license. Finally, Sec. 960.12 contains a number of
implementing record keeping requirements similar to those for the
initial license review (see Sec. 960.12(b)-(d)).
5. Investors in Licensees
Section 960.14 is new. It is intended to encourage investment in
the space remote sensing industry while ensuring that those licensed to
operate these systems retain sufficient control to be able to preserve
U.S. national security, international obligations and foreign policies.
In essence, it requires a licensee to notify NOAA of significant
changes in ownership and to give the Government the opportunity to
review those changes that might result in a shift of control,
particularly to foreign persons or nations.
Section 960.14(a)(1) simply requires the licensee to notify NOAA
when a domestic investor's financial interest in the licensee reaches
ten percent. Certain basic information such as the identity of the
investor and the extent of the holdings must be provided within ten
days after the 10 percent threshold is reached.
Section 960.14(a)(2) recognizes that the potential for transfer of
control of the management and/or operations of a licensee is more
likely when a single domestic investor acquires a financial interest in
the licensee of 25 percent or more. If the licensee, notwithstanding
the acquisition of such interest, will retain control, it must document
this fact and include the information described in this section.This
documentation is to be filed within 10 days of the transaction.
Section 960.14(a)(3) requires an amendment where the financial
interest of a single domestic investor will reach or exceed 40 percent
of the licensee. In effect, it is presumed that an investment at this
level results in a transfer of control.
Section 960.14(b)(1) requires the licensee to notify NOAA when a
foreign investor's financial interest in the licensee reaches five
percent. Certain basic information such as the identity of the investor
and the extent of the holdings, and any updates to the technology
control plans, if necessary, must be provided within ten days after the
five percent threshold is reached.
Section 960.14(b)(2) recognizes that the potential for transfer of
control of the management and/or operations of a of a licensee is more
likely when a foreign investor holds a financial interest in the
licensee of 15 percent or more. If the licensee, notwithstanding such
acquisition, will retain control, it must document this fact and
include the information described in this section. Section 960.14(b)(3)
provides that this documentation must be filed 60 days prior to
acquisition together with the relevant investment agreement which is
considered a ``significant agreement'' under Sec. 960.12.
Section960.14(b)(4) requires an amendment to the license where the
financial interest of either a foreign investor or foreign investors as
a whole will exceed 40 percent of the licensee. In effect, it is
presumed that an investment at this level results in control. Since
control by foreign investors generally will not be approved, licensees
may obtain approval for an amendment of this nature only by rebutting
this presumption with clear documentation that it retains control over
its management and operations. In addition to other specified
information for an amendment, it must include a certification that no
foreign persons can influence the corporation's activities and that the
control of the Board of Directors is still exerted by the majority U.S.
shareholders. The licensee must also establish a technology control
plan that ensures that the company complies with relevant U.S. laws
such as export control laws.
Foreign investment that exceeds 49 percent of the licensee is
prohibited in Sec. 960.14(b)(5).
Section 960.14(c) provides that if through the acquisition of a
financial interest by any person(s) or nation(s), regardless of the
percentage of investment, or a through contractual or other
relationship, there will be a transfer of control of the licensee,
Sec. 960.13(d)(2) requires an amendment of the license. However, as
this section makes clear, control of these sensitive remote-sensing
systems to foreign investors generally raises national security,
international obligation or foreign policy concerns and an amendment
involving such a transfer of control is unlikely to be approved.
The procedures in this section applies only to U.S. operators that
are subject to U.S. jurisdiction or control. However, a foreign
operator over which the U.S. initially has no jurisdiction or control,
may decide to carry out its activities in the U.S. to the extent that
it becomes subject to U.S. jurisdiction and control under
Sec. 960.2(c). In such cases the provisions with respect to changes in
foreign ownership will be set forth in the license.
[[Page 59321]]
6. New Enforcement Provisions
Section 203(a) of the 1992 Act revised the administrative
authorities granted to the Secretary, primarily to provide grater
judicial oversight and more predictability for the licensees. Thus, the
Administrator now may seek an injunction in order to terminate, modify,
or suspend a license or to terminate licensed operations in the case of
violations of the Act, regulations, or license. Further, the
Administrator may obtain a warrant in order to seize records or objects
believed to be used in a violation.
Subpart C of the proposed regulations would implement these
changes. They also continue to set forth the procedures for imposing
any administrative civil penalty under section 203(b) of the Act. These
include provisions for the formal agency adjudication on the record to
which the licensee is entitled which are found in 15 CFR part 904.
7. Additional Changes
a. Definitions
Several new technical definitions have been added relating to the
operational capability of a remote sensing system. These include the
terms: ``ground sample distance,'' ``field of view,'' ``instantaneous
field of view,'' ``resolution,'' ``spatial resolution,'' and
``tasking.'' Experience in prior licensing exercises has shown that
these parameters help define the operational characteristics of the
system for the purpose of determining national security and foreign
policy concerns and the definitions are intended to establish these
informational requirements as precisely as possible.
In accordance with the President's policy, the regulations define
the term ``foreign agreement'' to establish those that are
``significant and substantial'' and, therefore, subject to the advance
notification requirement of sections 202(b)(6) of the Act and
implemented in Sec. 960.9(g) of the regulations. The definition focuses
on the two types of agreements that could have particular national
security or foreign policy implications: Those that give a foreign
party a degree of control over the operation of the system, e.g. the
ability to control the spacecraft, task the sensors, or exercise
managerial control over the system, including technology transfer; and
those that establish a particularly important role for a foreign party
in distributing the data from the system, either by operating a foreign
ground station or by acting as a major customer or distributor; and
those that involve foreign investment. If the agreement effectively
expands the capability of the system, for example by adding a ground
station that could collect data not anticipated by the license, the
process would require an amendment to the license (see
Sec. 960.13(e)(3)).
The proposed regulations would state that ordinary data sales
agreements might be considered a significant or substantial foreign
agreement. However, NOAA requests comment on this issue.
New definitions have also been added defining ``beneficial owner''
and ``voting interest,'' as part of the new foreign investment
agreement provisions.
Finally, the definition of ``unenhanced data'' has been modified
consistent with the 1992 Act, and the definition of ``value-added
activity'' has been deleted as no longer necessary.
b. Informational Requirements
The proposed regulations update the informational requirements of a
license application. As with the existing regulations, the intent is to
solicit only that information relevant to those limited U.S. interests
covered by the 1992 Act while ensuring that applications will be as
complete as possible. The information of primary importance is that
describing the orbit and data collection characteristics aspects of a
proposed system which are significant in terms of its national security
and foreign policy implications (Sec. 960.6(c). Additional relevant
information concerns the applicant's data distribution plans and the
extent of any U.S. government support of the system. This information
is needed to determine the appropriate data access policy
(Secs. 960.6(d) and (e)).
c. The Archive Provision
In accordance with section 502 of the Act Sec. 960.9(h) states that
licenses will include terms and conditions for making unenhanced data
available to U.S. Government agencies, including the Archive, for the
specific purpose of including it in the basic data set. The negotiation
to provide such data on reasonable terms and conditions will take into
account the commercial value of the data. This section also states that
before the licensee unenhanced data obtained under the license is
purged, the licensee shall offer such unenhanced data to the Archive,
at the cost of reproduction and transmission, which the Archive will
then distribute at the cost of fulfilling user requests. Because the
licensee will offer this unenhanced data at this minimum cost and the
Archive will distribute the data at the cost of fulfilling user
requests, it is presumed that the commercial value of the data is
negligible. No licensee can negotiate terms with a potential customer
or distributor that would prohibit or otherwise prevent the licensee
from meeting its obligation to make all data collected available to the
Archive.
d. Protecting Proprietary Information
Proposed Sec. 960.7 would require that the applicant for a license
submit two different versions of their application. One version would
be the proprietary version, with brackets around the information that
should be given confidential treatment; and the other would be the
public version, with the information inside the brackets taken out. The
prospective licensee must include a general justification for such
confidential treatment. This requirement reflects a balance between the
needs of the licensees to be assured that the sensitive information
which they submit will be treated confidentially, and the need to
enable the public to have access to these government records.
Request for Public Comment
NOAA is requesting public comment on the major revisions in the
proposed regulations, as described above. NOAA is particularly seeking
comment on the following: (1) The definition of ``Significant or
Substantial Foreign Agreement''; (2) the review of foreign investment
agreements; (3) the reporting of ``beneficial owners''; and (4) the
information requirements of the application process.
With regards to the definition of ``Significant or Substantial
Foreign Agreement'' as well as the review of such foreign agreements,
NOAA has proposed a regime for addressing issues of foreign ownership,
or control over U.S. licensed private remote sensing systems. As stated
in an earlier section, the intent is to set up a regime that ensures
that undue foreign control or influence over satellite operations does
not compromise national security or foreign policy goals while at the
same time promoting and permitting investment in these capital
intensive systems. By monitoring the investment closely and having
certain thresholds which raise the level of scrutiny, the intent is
that detailed review at certain thresholds will be able to prevent the
occurrence of any imperiling national security situations. We are
interested in hearing if our approach adequately achieves our
intentions, or, given our intent, it would be better to adopt a regime
similar to that found at 10 U.S.C. 2327 for defense procurements or 50
U.S.C. app. 2710, the Exon-Florio investment review procedures. Also of
[[Page 59322]]
concern is whether the requirement to provide information about
beneficial owners should be qualified to require that information only
need be provided about ``known'' beneficial owners. This would make the
NOAA regulatory requirement consistent with the Security and Exchange
Commission's requirement to provide information on ``known'' beneficial
owners.
Concerning information requirements of the application process, and
technical definitions found in these proposed regulations, NOAA is
considering placing these requirements in an appendix to the
regulations. This would make it easier to change the required contents
of an application, as only notice in the Federal Register need be
provided for changes. This would give the Administrator greater
flexibility in the face rapidly changing technology. NOAA has also
increased the information requested in the application to include
information about export licenses which the applicant holds or intends
to apply for. NOAA is seeking comment on whether this requirement is
duplicative of the existing export control regime.
Classificaiton
A. Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
This proposed rule establishes a process intended to promote the
development of the industry 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. Even though there has been a substantial
reduction in size and cost of Earth remote-sensing space projects,
costs of development and launch still involve extraordinary
capitalization. As such, small entities have yet to enter this field
and appear highly unlikely to do so.
Accordingly, the Assistant General Counsel for Legislation and
Regulation of the Department of Commerce has certified to the Chief
Counsel for Advocacy of the Small Business Administration that the
proposed rule, if adopted, would not have a significant economic impact
on a substantial number of small entities.
B. Paperwork Reduction Act of 1995 (35 U.S.C. 3500 et seq.)
This proposed rule contains collection-of-information requirements
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). The proposed rule revises collection of information requirements
that were previously approved by the Office of Management and Budget
under control number 0648-0174. A request to make these revisions has
been submitted to the Office of Management and Budget for approval.
Public reporting burden for these collections of information is
estimated to average 20 hours per license applications; 5 hours for
amendment submissions; 10 hours for foreign agreement notification; 2
hours for notification of disposition/orbital debris change; and 1 hour
for notification of deviation of orbit. This estimates include the time
for reviewing instructions, searching existing data sources, gathering
and maintaining the data needed, and completing and reviewing the
collection of information. Comments are invited on: (a) Whether the
proposed collection of information is necessary for the proper
performance of the functions of the agency, including whether the
information will have practical utility; (b) the accuracy of the
agency's estimate of the burden of the proposed collection of
information; (c) ways to enhance the quality, utility, and clarity of
the information to be collected; and (d) ways to minimize the burden of
the collection of information on respondents, including, through the
use of automated collection techniques or other forms of information
technology. Send comments regarding this burden estimate or any other
aspect of this collection of information to Charles Woolbridge, NOAA,
National Environmental Satellite, Data, and Information Service, 1315
East West Highway, Room 3620, Silver Spring, MD 20910-3282 and to OMB
at the Office of Information and Regulatory Affairs, Office of
Management and Budget, Washington, DC 20503 (Attention: NOAA Desk
Officer). Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA unless that collection of information displays
a currently valid OMB control number.
C. National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Publication of the proposed regulations does not constitute a major
federal action significantly affecting the quality of the human
environment. Therefore, an environmental impact statement is not
required.
List of Subjects in 15 CFR Part 960
Scientific equipment, Space transportation and exploration.
Dated: October 28, 1997.
Robert S. Winokur,
Assistant Administrator.
Accordingly, for the reasons set forth above, part 960 of Title 15
of the Code of Federal Regulations is proposed to be 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--Application Process
960.4 Pre-application consultation.
960.5 Filing Information.
960.6 Information to be included with application.
960.7 Confidentiality of information.
960.8 Review procedures for license applications.
960.9 Conditions for operation.
960.10 National security, International Obligations and Foreign
Policy concerns.
960.11 Data policy for remote sensing space systems.
960.12 Notification of foreign agreements.
960.13 Amendments to licenses.
960.14 Investment agreements.
960.15 Certain rights not conferred by license.
Subpart C--Enforcement Procedures
960.16 General.
960.17 Prohibitions.
960.18 Sanctions.
960.19 Civil penalties.
960.20 Seizure.
Authority: 15 U.S.C. 5624.
Subpart A--General
Sec. 960.1 Purpose.
(a) These regulations set forth the procedural and informational
requirements for licensing and supervising the operation of 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.) (Pub. L. 102-555) (the
Act). The regulations are intended to facilitate development of the
commercial space remote-sensing industry in the United States and
broadly promote the beneficial use of remote sensing data while
ensuring compliance with basic requirements of the Act:
(1) Preserving the national security of the United States;
(2) Observing the international obligations and policies of the
United States;
(3) Ensuring that unenhanced data collected by licensed systems
concerning the territory of any country are made available to the
government of that country as soon as such data are
[[Page 59323]]
available and on reasonable terms and conditions;
(4) Ensuring that remotely sensed data from space are widely
available for research, particularly environmental and global change
research; and
(5) Maintaining a permanent comprehensive 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 President's Policy announced
on March 10, 1994 entitled, ``U.S. Policy on Foreign Access to Remote
Sensing Space Capabilities'', decisions regarding the issuance of
licenses and operational conditions (see Secs. 960.8, 960.9, 960.12,
960.13 and 960.14) will be made by the Secretary of Commerce, or his or
her designee, after consultation with the Secretaries of Defense and
State with respect to national security, international obligations, and
foreign policy.
(c) Obtaining a license to operate a satellite pursuant to these
regulations does not affect related licensing requirements of other
Federal agencies such as the Department of State, the Federal
Communications Commission, and the Department of Transportation.
Sec. 960.2 Scope.
(a) 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 system either directly or
through affiliate, or subsidiary. For the purposes of these regulations
a person is subject to the jurisdiction or control of the United States
if such person is:
(1) An individual who is a United States citizen; or
(2) A corporation, partnership, association, or other entity
organized or existing under the laws of any state, territory, or
possession of the United States.
(b) Other private space system operators may be subject to U.S.
jurisdiction and control, and their operations, therefore, subject to
the provisions of the Act and these regulations, if they have
substantial connections with the United States or deriving substantial
benefits from U.S. law that support their international remote-sensing
operations. Substantial connections include factors or a combination of
factors such as using a U.S. launch vehicle and/or platform, operating
a spacecraft command and/or data acquisition station in the U.S., and
processing the data at and/or marketing it from facilities within the
U.S. The following examples are intended to illustrate the application
of this paragraph, and should not be considered limitations thereon, or
as an indication of how other Federal agencies may interpret related
licensing requirements that they administer.
Example 1: A non-U.S. corporation launches an operational
remote-sensing space system, pursuant to a Department of
Transportation license, using a U.S. operated launch vehicle and/or
a platform launched from U.S. territory. The company operates no
spacecraft command ground station in the U.S. although it has
technicians and supervisors present in the U.S. to ensure
integration of the foreign-built satellite or space system with the
launch vehicle. The company acquires data directly from the space
system and processes and distributes it from facilities outside the
U.S., although it advertises the availability of data and/or
information in U.S. publications.
The company is not subject to U.S. jurisdiction or control and
requires no license for its remote-sensing activities.
Example 2: A company's operation is the same as in Example 1
except that it acquires, processes and distributes the data to U.S.
and foreign customers from one or more facilities within the U.S.
The company is subject to U.S. jurisdiction and control and
requires a license for the purposes of this Act and these
regulations.
Potential applicants with questions concerning the application
of these regulations to specific operations may consult with the
Administrator prior to filing an application. Such consultations
shall not be included in the record of any subsequently filed
application unless the applicant specifically so requests or the
Administrator so advises the applicant.
(c) These regulations are applicable to any action taken on or
after the effective date of these regulations by the Secretary with
respect to any existing, proposed or future license.
Sec. 960.3 Definitions.
For purposes of these regulations, the following terms have the
following meanings:
Act means the Land Remote Sensing Policy Act of 1992.
Administrator means the Administrator of NOAA or his or her
designee.
Affiliate means any person who is under common ownership or control
with the applicant or licensee.
Archive means the National Satellite Land Remote Sensing Data
Archive established by the Secretary of the Interior pursuant to the
archival responsibilities defined in sec. 502 of the Act.
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 the voting power of any
security or financial interest in a licensee; and the power to dispose
of, or to direct the disposition of, any security or other financial
interest in a licensee. All securities or other financial interests 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 or
other financial interest if that person has the right to acquire
beneficial ownership, as defined above, within sixty days including but
not limited to any right to acquire: through the exercise of any
option, warrant or right; through the conversion of a security;
pursuant to the power to revoke a trust, discretionary account, or
similar arrangement; or pursuant to the automatic termination of a
trust, discretionary account or similar arrangement.
Field of view means the solid angle through which an instrument is
sensitive to radiation.
Ground sample distance (GSD) means the distance of the terrain
between successive ground resolution cells (the area on the terrain
that is covered by the instantaneous field of view of a detector).
Instantaneous field of view (IFOV) means the narrow angle within
which incident energy is focused on the detector of the radiometer at a
particular instant in time; defined as the radio of detector size to
the focal length of the optical system, and often expressed in
microradians.
Measured values means the assigned numbers, shades or colors, which
represent, in a standardized system, an amount of electromagnetic
radiation sensed in a spectral band.
NOAA means the National Oceanic and Atmospheric Administration.
Party (to a licensing process of foreign agreement notification)
shall include the Secretary, the applicant, or the Secretary of
Defense, the Secretary of State and the head of any other Federal
organization, as appropriate, recognized by the Secretary of Commerce
as being involved in any proceedings between the U.S. Government and a
licensee/applicant.
Person means any individual (whether or not a citizen of the United
[[Page 59324]]
States), corporation, partnership, association, or other entity
organized or existing under the laws of any nation, or consortium of
any such entities acting together for the acquisition, holding, or
disposal of securities or other financial interests in the licensee.
``Person'' does not include any government or intergovernmental
organization or agency thereof.
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.
Remote sensing space system means any instrument or device or
combination thereof flown on any space-borne platform and any related
ground based 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 these regulations,
small, hand-held cameras shall not be considered remote sensing
systems.
Resolution means the ability of an entire remote sensing system,
including lens, antennae, display, exposure, processing, and other
factors, to render an interpretable image.
Secretary means the Secretary of Commerce.
Security means any note, stock, treasury stock, bond, debenture,
evidence of indebtedness, certificate of interest or participation in
any profit-sharing agreement, collateral trust certificate, pre-
organization certificate or subscription, transferable share,
investment contract, voting trust certificate, 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), or any
put, call, straddle, option, or privilege entered into a national
securities exchange relating to foreign currency, or, in general, any
interest or instrument commonly as a ``security'', or any certificate
of interest or participation in, temporary or interim certificate for,
recipe for, guarantee of, or warrant or right to subscribe to or
purchase, any of the foregoing.
Significant or substantial foreign agreement means an agreement
with a foreign nation or person that provides for:
(1) Cooperation in the operation of the spacecraft;
(2) Tasking of the satellite sensors, modifying satellite tasking
commands, or revising the priority of tasking requests, or otherwise
providing an opportunity to exercise a significant level of managerial
control over the system's operation;
(3) Real-time direct access to the system's unenhanced data.
(4) Distributorship arrangements involving the receipt of high
volumes of the system's unenhanced data;
(5) An equity interest in the Licensee, if the equity interest in
the Licensee by a foreign nation and/or person equals or exceeds or
will equal or exceed 15 percent of total outstanding shares, or
entitles the foreign person to a position on the Licensee's Board of
Directors;
(6) The acquisition by any person(s) or nation(s) of any security
or other financial interest of the licensee, regardless of the
percentage acquired, that will result in a transfer of sufficient
voting power to control the management, policies, and/or operations of
the licensee; or any contractual or other relationship with a foreign
person or nation, wherein the foreign person or nation obtains the
ability to control the management, policies, technology transfer and/or
operations of the licensee.
(7) Significant or Substantial Foreign agreements may include
agreements for the sale of data, for the sale of value added products,
or for the establishment of marketing outlets in foreign countries,
pursuant to operations in the ordinary course of business as described
in the applicant's plan for sale and distribution contained in a
license application submitted pursuant to these regulations.
Spatial resolution means the ground area sensed by a radiometers's
IFOV calculated at nadir as the product of the IFOV and the satellite
altitude.
Spectral band means the interval in the electromagnetic spectrum
defined by two wavelengths, frequencies, or wave numbers.
Subsidiary means a person in which the applicant or licensee holds
the voting power necessary to control its management, policies, and/or
operations. If a subsidiary is the entity responsible for operation a
remote sensing space system, and the subsidiary is under the
jurisdiction or control of the United States, the subsidiary must
obtain the license.
Tasking means any action taken to command a satellite or it's
sensor to acquire data for direct transmission or storage on the
satellite's recording subsystem. Such action can be in the form of
commands sent to the satellite from a ground site for immediate
execution or for storage in the satellite's memory for execution at a
specified time or location within a given orbit.
Unenhanced data means Earth 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 received directly from the
satellite; registration of such data with respect to features of the
Earth; and calibrations of spectral response with respect to such data,
but does not include conclusions, manipulations, or calculations
derived from such data, or a combination of the remote-sensing data
with other data and excludes phase history data for synthetic aperture
radar systems or other space based radar systems.
Voting Power means the power to vote, or direct the voting of, any
security or other financial interest in a licensee, including the power
to vote on or for:
(1) The conduct of the operations or significant policies of the
licensee;
(2) The selection or appointment of directors, trustees, or
partners (or persons exercising similar functions of the licensee);
and/or
(3) The power to vote on the appointment of the principal executive
officers of the licensee.
Subpart B--Application Process
Sec. 960.4 Pre-application consultation.
Potential applicants are encouraged to contact the Administrator at
the earliest possible planning stages. Such consultation may reveal
design or data collection requirements that may be accommodated early
at low cost or avoid costly changes in design or data collection
characteristics. Consultation before a license application is submitted
may also prove useful in defining informational requirements and in
expediting review. Informal consultations held prior to the submission
of an application will not be considered part of the agency record of
an application. The agency record will be open upon the filing of the
application pursuant to Sec. 960.5.
Sec. 960.5 Filing Information.
(a) Who must file. A person desiring to operate a private remote
space sensing system and/or establish substantial connections with the
United States relating to the operation of a private remote space
sensing system shall file an application for such a license under these
regulations. The holder of an existing license seeking to modify the
terms of that license shall file an application for an amendment under
Sec. 960.13.
(b) Where to file. Applications and all related documents shall be
filed with the Assistant Administrator, National
[[Page 59325]]
Environmental Satellite, Data and Information Service (NESDIS), NOAA,
Department of Commerce, Washington, D.C. 20233.
(c) 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.
(d) Number of copies. Three (3) copies of each application must be
submitted in a readily reproducible form. If proprietary treatment is
requested for any portion of the application, one (1) copy of the
public version required by Sec. 960.7(b) must also be submitted in a
readily reproducible form.
Sec. 960.6 Information to be included in the application.
The following information shall be filed by the applicant and
revised as necessary:
(a) The name, mailing address, telephone number and citizenship of:
The applicant and any affiliates or subsidiaries; the chief executive
officer of the applicant and each director, if the applicant is a
corporation, or each general partner, if the applicant is a
partnership; all executive personnel or senior management; any
directors, partners, executive personnel or senior management who hold
positions with or serve as consultants for any foreign nation or
person; each domestic beneficial owner of an interest equal to or
greater than 10 percent in the applicant; each foreign owner of an
interest equal to or greater than 5 percent in the applicant; each
foreign lender and amount of debt where foreign indebtedness exceeds 25
percent of an applicants total indebtedness; and a person upon whom
service of all documents may be made.
(b) 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.
(c) Orbital and data collection characteristics regarding the
applicant's proposed remote sensing space system in sufficient detail
to enable the secretary to determine whether the proposal meets
requirements of the Act and the President's Policy. These
characteristics shall include:
(1) The date of the intended commencement of operations and the
expected duration of the operations;
(2) The number and type of satellites and sensors proposed;
(3) The range of orbits and altitudes proposed, orbital
characteristics such as inclination angle, equator crossing time, and
those parameters which affect swath width;
(4) The range of ground sample distance, spatial resolution, field
of view, and instantaneous field of view proposed;
(5) The specific spectral bands and/or radar characteristics that
are proposed;
(6) The data collection capabilities proposed including on board
storage capacity, off-nadir viewing, scene revisit time, tasking
procedures, and scheduling plans;
(7) The command (uplink and downlink) and mission data (downlink)
transmission frequencies and system transmission (uplink and downlink)
footprint;
(8) The methods applicant will use to ensure that integrity of its
operations during a national security crisis, including plans for:
positive control of the spacecraft and relevant ground stations; denial
of unauthorized access to data transmissions to or from the satellite;
and restriction of collection and/or distribution of unenhanced data
from specific areas at the request of the U.S. Government. If such
plans include encryption, encryption devices used will require U.S.
Government approval.
(9) A description of an significant or substantial agreements
between the applicant, its affiliates and subsidiaries, with foreign
nation or person, including copies if available;
(10) The proposed concept of operations for the system; and
(11) If the applicant wishes, information concerning the extent to
which data comparable to those generated by the applicant's system
could be acquired or made available from foreign systems which are not
subject to these regulations.
(d) The applicant's proposed technology control plan, if the
concept of operations includes any international component which
requires an export license. Such plan should ensure that the applicant:
(1) Maintain policies and procedures to safeguard the export of
controlled information that is entrusted to it; and
(2) Complies with U.S. export control laws and regulations, and
does not take actions adverse to the conditions of the license; and
(3) Protects the operational control of the licensed system from
foreign influence and any technology transfer that would impinge on
national security, international obligations and foreign policy; and
(4) Informs the Administrator of all export licenses which the
applicant holds or intends to apply for.
(e) 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 place for making data available to the
Archive inclusion in the basic data set; and
(4) Opportunities for the data to be made available for long term
monitoring, protection, and study of the changing global environment
and study of the changing global environment.
(f) If the applicant is proposing to follow a commercial data
distribution and pricing policy as provided for by Sec. 960.11(b) or
(c), 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.
(g) The plan for post-mission disposition of any remote-sensing
satellites owned or operated by the applicant to allow a determination
that the plan minimizes orbital debris and does not endanger public
safety. If the satellite disposition involves an uncontrolled re-entry
the applicant must provide an analysis of the total debris casualty
area of the system's components and structure surviving re-entry and
assure that the system design minimizes the threat to the public from
such re-entry.
(h) If information supplied in an application becomes materially
inaccurate or incomplete prior to issuance of the license, the operator
must promptly file the new or corrected information with the
Administrator. If new or revised information is filed
[[Page 59326]]
during the application process, the Administrator shall promptly
determine whether the deadline imposed by section 201(c) of the Act
must be extended to allow adequate review of the revised application
and, if so, for how long.
Sec. 960.7 Confidentiality of information.
(a) Proprietary information. The Administrator will treat business
or trade secrets or commercial or financial information, the release of
which to the public would cause substantial harm to the competitive
position of the submitter, as proprietary information, if that
information is so designated by the submitter.
(1) Any person who submits information to the Administrator in
connection with any requirements imposed by these regulations may
request that the Administrator consider that information, or any
specified part, be treated as proprietary.
(2) The submitter shall identify proprietary information on each
page by placing brackets around the proprietary information and clearly
stating at the top of each page containing such information
``Proprietary Treatment Requested.''
(3) The submitter shall provide a general explanation as to why
proprietary treatment is being requested.
(b) Public summary. Prior to issuance of a license, any person
submitting information for which proprietary treatment is requested,
shall also provide to the Administrator a public version of the
document. This public summary shall be available for public review at a
location designated by the Administrator. The public summary shall
include:
(1) An adequate public summary of all proprietary information; and
(2) A statement itemizing those portions of the proprietary
information which cannot be summarized adequately and all arguments
supporting that conclusion for each portion.
(c) Status during consideration of request. While considering
whether to grant a request for proprietary treatment, the Administrator
will not disclose or make public the information. The Administrator
normally will decide not later than 14 days after the Secretary
receives the request. The Administrator will give persons whose request
for proprietary treatment of their information has been denied seven
(7) working days notice before the information is disclosed.
(d) Treatment of proprietary information. Unauthorized disclosure
of any proprietary information marked in accordance with this section
is subject to the criminal penalties set forth in 18 U.S.C. 1905. NOAA
shall provide marked information only to those interested agencies
which require the information for review purposes and shall ensure that
the copies provided to these agencies contain all markings provided.
(e) Requests for disclosure. (1) Requests for public disclosure of
information submitted, reported, or collected pursuant to this part
shall be in accordance with 15 CFR 903.1 (which directs the reader to
15 CFR part 4).
(2) Upon receipt of a request for disclosure of information for
which proprietary treatment has been requested, NOAA will immediately
notify the applicant or licensee who submitted the information and
inquire whether the applicant or licensee continues to request
proprietary treatment.
(3)(i) If the applicant or licensee waives or withdraws a request
for proprietary treatment in full or in part, the person shall deliver
to NOAA a written statement to that effect. If the person confirms the
request for proprietary treatment, such person is strongly encouraged
to deliver to NOAA a written statement in sufficient time for NOAA to
fully consider it in making its formal determination (generally, not
later than the close of business on the seventh working day after being
notified under paragraph (e)(3) of this section). Such statement shall
provide an explanation as to why each piece of information subject to
the request is entitled to proprietary treatment under this section.
The explanation should describe:
(A) The commercial or financial nature of the information;
(B) The nature and extent of competitive advantage enjoyed as a
result of possession of the information;
(C) The nature and extent of the competitive harm that would result
from public disclosure of the information;
(D) The extent to which the information has been disseminated to
employees and contractors of the person submitting the information;
(E) The extent to which persons other than the person submitting
the information possess, or have access to, the information; and
(F) The nature of the measures that have been and are being taken
to protect the information from disclosure; and
(G) Present any other arguments against disclosure of information.
(ii) Failure to respond to the agency notification in a written
statement will be deemed as a waiver of confidential treatment.
Sec. 960.8 Review procedures for license applications.
(a)(1) Within twenty-one (21) days after the receipt of an
application, the Administrator, shall notify the applicant, in writing
whether the application omits any of the information required by
Sec. 960.6.
(2) For any systems whose operational capabilities are similar to
those of previously licensed systems, an application will be considered
to be complete on the date of receipt if all information required in
Sec. 960.6 has been provided. For any systems whose operational
capabilities exceed those of previously licensed systems, the
Administrator shall determine the additional information necessary to
complete the application. The Administrator shall notify the applicant
of the need for this information and specify the period of time in
which to provide it. The 120 day review period prescribed in section
201(c) of the Act will commence upon receipt of the information
requested by the Administrator.
(b) The Administrator shall review any completed application and
make a determination thereon, in accordance with the Act and
Sec. 960.1(b) within 120 days of the receipt of such completed
application. If final action has not occurred within such time, the
Administrator shall inform the applicant of any pending issues and of
actions required to resolve them.
(c) Before issuing a licensee, the Administrator shall find, in
writing, that the applicant will comply subject to penalties prescribed
by law with any national security concerns, international obligations,
and foreign policies of the United States and with all other
requirements of the Act and these regulations.
(d)(1) If the Administrator denies the license or includes
additional conditions in the license other than those set forth in
Secs. 960.9 and 960.10, the Administrator shall notify the applicant in
writing together with a concise statement, of the facts in the record
which the Administrator has determined support the action. Such notice
shall inform the applicant that, within twenty-one (21) days of the
date the notice was mailed, the applicant may request a hearing on the
record on the Administrator's decision by serving a written request on
the Administrator at the address specified in the Notice.
(2) The applicant shall be entitled at any time during business
hours to inspect and copy the entire record, in
[[Page 59327]]
accordance with applicable law (e.g. 5 U.S.C. 552b, the Freedom of
Information Act), upon which the decision was made.
(3) In the interest of compiling an accurate record of the
decisionmaking for later possible review, oral communications on
matters affecting the substance of a pending receives such a
communication, the Administrator shall include in the record a summary
of the communication and the circumstances surrounding its receipt.
(e)(1) The hearing requested under paragraph (d)(1) of this section
may be granted unless, in accordance with 5 U.S.C. 554(a)(4), the
hearing would involve the conduct of a military or foreign affairs
function, i.e. determinations concerning license conditions necessary
to meet national security concerns, international obligations and
foreign policy concerns are not subject to review. A determination to
deny a hearing on this basis shall constitute final agency action.
(2) Any hearing shall be closed to the public as necessary to
protect classified information.
(3) A hearing under this section shall be based solely on the
record developed in accordance with Sec. 960.6 and this section.
(4) The hearing shall be held in accordance with the procedures set
forth at 15 CFR part 904, subpart C, except to the extent that these
sections allow the introduction of testimony or other evidence not
contained in the administrative record upon which the decision was made
(see e.g. Secs. 904.204(d) and (e); 904.240-242; and 904.252).
(f) The Administrator shall terminate the license application
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 notice.
Sec. 960.9 Conditions for operation.
(a) Each license issued for the operation of a remote sensing space
system shall specify that the licensee shall comply with all the
requirements of the Act and these regulations, and shall set forth the
conditions necessary to ensure compliance.
(b) A licensee shall operate its system in a manner that preserves
the national security and observes the international obligations and
the foreign policies of the United States. The basic license conditions
to ensure compliance with these requirements are set forth in
Sec. 960.10 and conditions consistent with this section will be
incorporated in each license. Any additional conditions necessary to
ensure compliance with these requirements will be incorporated into
that license in accordance with Sec. 960.8(d).
(c)(1) A licensee shall make available to the government of any
country (including the United States) unenhanced data collected by its
system concerning the territory under the jurisdiction of such
government as soon as such data are available and on reasonable terms
and conditions. However, no sensed data shall be provided to the sensed
state if such release is contrary to U.S. national security,
international obligations or foreign policy concerns, e.g. where the
sensed state is deemed to be a state sponsor of terrorism or a country
subject to U.S. or international arms embargoes.
(2) To comply with this subsection, a licensee must make its
unenhanced data available on request to the affected government as soon
as the licensee is able to distribute them commercially or as soon as
the licensee has processed them into a format that the licensee uses
for its own purposes, whichever occurs sooner.
(3) For purposes of this subsection, terms and conditions are
reasonable if the licensee:
(i) Follows a nondiscriminatory data access policy that complies
with section 501 of the Act and Sec. 960.11 of this part;
(ii) Makes the unenhanced data available to all users on a regular
commercial basis and does not establish terms and conditions which
favor any user, or any class or users over the affected government in
terms of delivery, format pricing, or technical considerations; or
(iii) Establishes separate, reasonable terms and conditions for the
affected government if the licensee makes some or all of the unenhanced
data available only to particular users. In establishing these
reasonable terms and conditions the licensee shall take into account
the intended use of the data by the affected government; and
(iv) Has provided affected governments an opportunity to
demonstrate that the above terms and conditions present an undue
hardship in acquiring the unenhanced data.
(4) Issues relating to appropriate notification of affected
governments including issues concerning disputed territories and the
methods for ensuring availability, international obligations and
foreign policy will be referred to the Department of State.
(5) Issues relating to national security will be referred to the
Department of Defense.
(d) A licensee shall make available on a nondiscriminatory basis in
accordance with section 501 of the Act and Sec. 960.11 of this part any
unenhanced data designated by the Administrator in the license in
accordance with section 201(e) of the Act and Sec. 960.11.
(e) A licensee shall dispose of any space platforms owned or
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 Administrator of all plans and procedures for
the disposition of such platforms, e.g. uncontrolled re-entry, burn on
re-entry or controlled de-orbit, providing sufficient notification to
allow determination that the proposed procedures will minimize orbital
debris and not jeopardize safety.
(f) A licensee shall inform the Administrator immediately of any
deviation or proposed deviation from the approved operational
characteristics of the system furnished pursuant to Sec. 960.6 or
Sec. 960.13. Such notification is required sufficiently prior to the
deviation so as to enable government approval of such deviation if
circumstances permit or, if advance notice is not possible because of
an emergency posing an imminent and substantial threat of harm to human
life, property, the environment or the remote sensing space system
itself, the licensee shall notify the Administrator of the deviation as
soon as circumstances permit.
(g) A licensee shall notify the Administrator, for review under
Sec. 960.12, or its intent to enter into any significant or substantial
foreign agreement. 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 or acceptable with conditions.
(h) A licensee shall make available unenhanced data requested by
the Archive for the basic data set on reasonable terms as agreed by the
licensee and the Archive. A licensee shall make available to the
Administrator for review upon request the record of unenhanced data
obtained pursuant to the license. Before any unenhanced data so
obtained is purged from its holdings, or the holdings of its
distributors, or customers that may have rights to distribute such
data, the licensee shall make such data available to the Archive at the
cost of reproduction and transmission with no
[[Page 59328]]
further restrictions on release of the data to the public.
(i) If the space system will utilize a U.S. Government platform,
the licensee will reach an agreement with the appropriate agency to
reimburse the Government for all related costs and to ensure that use
of the platform will not interfere with the Government's mission.
Sec. 960.10 National security, international obligations and foreign
policy concerns.
(a) For any system whose operational capabilities are similar to
those of previously licensed systems, it is presumed that any concerns
relating to national security, international obligations, and foreign
policies can be resolved through the imposition of similar license
conditions. For any system whose operational capabilities exceed those
of previously licensed systems, the Administrator shall make every
effort to resolve these concerns through license conditions and any
additional ones as necessary, but may deny the issuance of a license if
necessary to avoid compromising these concerns.
(b) The conditions in licenses shall include:
(1) The licensee shall maintain positive control of the spacecraft
at all times and shall include safeguards to ensure the integrity of
spacecraft operations. The Licensee shall also maintain and make
available to the U.S. Government, upon request, a record of all
satellite tasking operations for the previous year, and allow the
Administrator to inspect such records at all reasonable times.
(2) During periods when national security or international
obligations and/or foreign policies may be compromised, as defined by
the Secretary of Defense or the Secretary of State, respectively, the
Secretary may, after consultation with the appropriate agency(ies),
require a Licensee to limit data collection and/or distribution by the
system to the extent necessitated by the given situation. Decisions to
impose such limits only will be made by the Secretary of Commerce in
consultation with the Secretary of Defense or the Secretary of State,
as appropriate.
(3) During those periods when, and for those geographic areas that,
the Secretary will require the Licensee to limit distribution under
paragraph (b)(2) of this section the licensee shall, on request, make
the unenhanced data thus limited available exclusively to the U.S.
Government by means of government furnished rekeyable encryption on the
down-link. To make this possible, the conditions in the license shall
also require the licensee to use only encryption devices approved by
the U.S. Government and to use a data down-link format that allows the
U.S. Government access and use of these data during such periods.
(c) In determining the extent of required controls on the
collection or distribution of imagery, the Government will give full
consideration to:
(1) Making limitations imposed applicable to the smallest
geographic area feasible and for the briefest period of time necessary
for the full achievement of the intended objective.
(2) Alternative actions such as delaying the transmission or
distribution of data, restricting the field of view of the system,
encryption of the data if this is possible, or other means to control
access to the data so as to justify the overall impact on commercial
operations.
(d) In accordance with section 507(d) of the Act, if the conditions
described in paragraph (b)(3) of this section or any other license
conditions result in technical modifications being imposed on a
licensee on the basis of national security concerns and the
Administrator, in consultation with the appropriate federal agencies,
determines that additional costs will be incurred by the licensee, or
that past development costs (including the cost of capital) will not be
recovered by the licensee, the agency or agencies requesting such
technical modifications may be required to reimburse the licensee for
such additional or development costs, but not for anticipated profits.
Reimbursements may cover costs associated with required changes in
system performance, but not costs ordinarily associated with doing
business abroad. 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 in accordance
with section 507(d) of the Act. In no event shall licensees be entitled
to reimbursements for license conditions imposed on the basis of
international obligations and foreign policy considerations.
Sec. 960.11 Data policy for remote sensing space systems.
(a) In accordance with section 501 of 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 Administrator shall state in the license that all of the
unenhanced data from the system shall be made available on a
nondiscriminatory basis.
(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 Administrator shall make no
designation in the license and the licensee may provide access to its
unenhanced data in accordance with normal commercial policies, subject
to the requirement for providing data to the government of any sensed
state in Sec. 960.9(c) and subject to implementation of the licensee's
plan contained in its application to provide widespread access to its
unenhanced data for non-commercial scientific and educational purposes.
(c) If the U.S. Government has funded some of the development,
fabrication, launch, or operations costs of a licensed system (either
directly or indirectly), the Administrator, in consultation with other
appropriate U.S. agencies, shall 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 and shall designate in the license any data
subject to this requirement. In making this determination, the
Administrator shall 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; and
(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 research and public benefit purposes
without requiring full nondiscriminatory access.
(d) The data policy established pursuant to this section shall be
consistent with any contract or other agreement entered into between a
U.S. government agency and the licensee.
Sec. 960.12 Notification of Foreign Agreements
(a) Upon notification by a licensee, pursuant to Sec. 960.9(g), the
Administrator shall initiate review of the proposed significant or
substantial
[[Page 59329]]
agreement in light of the national security, international obligations
and foreign policy concerns of the U.S. Government.
(b)(1) If the Administrator determines, pursuant to the Act and
Sec. 960.1(b), that a proposed agreement will impair his or her ability
to enforce the terms or conditions of the license, the Administrator
shall identify the terms and conditions of the license and specify how
the agreement impairs enforcement.
(2) If the Administrator determines, under paragraph (d)(1) of this
section that a proposed agreement will compromise a specific national
security interest, international obligation, or foreign policy of the
United States, the Administrator shall provide the Licensee with an
unclassified explanation of the U.S. interest that is at risk, if such
is possible without jeopardizing the interest at risk. Such notice
shall inform the licensee that, within twenty-one (21) days from the
date the notice was mailed, the licensee may provide an alternative
that will not jeopardize the U.S. interest that is at risk or request a
hearing or, within seven (7) days of such date, may request an
expedited hearing.
(e)(1) The Administrator shall grant the hearing requested under
paragraph (d) of this section unless, in accordance with 5 U.S.C
554(a)(4), the hearing would involve the conduct of a military or
foreign affairs function, i.e. determinations of the concerning license
conditions necessary to meet national security concerns, international
obligations and foreign policy concerns are not subject to review. A
determination to deny a hearing on this basis shall constitute final
agency action. Any hearing shall be closed as necessary to protect
classified information. The hearing shall be based solely on the record
developed in accordance with this section and shall be for the purpose
of determining whether a preponderance of the evidence in that record
supports the objection raised to the proposed agreement.
(2) The applicant shall be entitled at any time during business
hours to inspect and copy the entire record, in accordance with
applicable law, upon which the decision was made.
(3) In the interest of compiling an accurate record of the
decisionmaking for later possible review, oral communications on
matters affecting the substance of a pending receives such a
communication, the Administrator shall include in the record a summary
of the communication and the circumstances surrounding its receipt.
(f)(1) A hearing requested under paragraph (d) of this section
shall be held in accordance with the procedures set forth as 15 CFR
part 904, subpart C, except insofar as those procedures provide for the
introduction of testimony or other evidence not contained in the
administrative record upon which the decision was made (see e.g.
Secs. 904.204 (d) and (e); 904.240-242; and 904.251-252).
(2) The Licensee shall be entitled to an expedited hearing as
provided for in 15 CFR 904.209 if the request is filed and all other
parties are served within seven (7) days of the date the
Administrator's notice under paragraph (d) of this section, was mailed,
specifically sets forth the Licensee's objections to the determinations
contained in the notice, and demonstrates that delaying the proposed
agreement during the time necessary to complete the normal hearing
process will jeopardize that agreement. Where an expedited hearing is
granted, the procedures of subpart C of 15 CFR part 904 shall be
modified to accommodate the following schedule:
(i) The hearing shall commence within 5 days after the filing of
the request with the Office of the Administrative Law Judge (ALJ)
unless the ALJ postpones the date of the hearing or grants continuation
of the hearing in the interest of justice or the parties agree that it
shall commence at a later time.
(ii) The ALJ shall make provision for daily transcripts. Hearing
shall be stenographically reported, transcribed, and made available to
the public as required by statute.
(iii) Within 5 days of the conclusion of the hearing, the parties
shall propose findings and conclusions to the ALJ accompanied by a
supporting brief.
(iv) Within 10 days after receipt of such brief, the ALJ shall
issue his or her findings and conclusions and a statement of the
reasons on which they are based. The ALJ's decision shall become final
in 10 days unless a party files suit in the United States District
Court contesting the decision as not based upon substantial evidence in
the record considered as a whole.
(v) Extensions of procedural dates shall be granted only when
required in the interest of justice, unless the parties otherwise
agree.
(g) 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.
(h) 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. 960.14 and the proposed
foreign agreement shall be considered in the context of the amendment
review process.
Sec. 960.13 Amendments to licenses.
(a) The licensee shall notify the Administrator when the
information supporting a license has become inaccurate and shall file
all necessary amendment applications in a timely manner. Notifications
shall contain all relevant new information and shall be filed at the
same address identified in Sec. 960.5(a). Amendment applications shall
be filed in accordance with the procedures specified in Secs. 960.5 and
960.6 for original license applications.
(b) Pursuant to the Act and Sec. 960.1(b), the Administrator shall
determine whether the amendment is permissible under the Act and
Sec. 960.9.
(c) If the Administrator determines that the notification omits
information required for an amendment application, the Administrator
shall notify the licensee of the items omitted.
(d) A licensee may not take any of the following actions until it
has been granted an amendment to the license:
(1) Assign the license;
(2) Transfer sufficient voting power to control the management,
policies and/or operations of the licensee or an operating subsidiary
to any person or to foreign nations or persons collectively;
(3) Incur any change in citizenship of the chairman of the board,
president, or other chief executive officer; or
(4) Deviate from the orbital characteristics, performance
specifications, data collection and exploitation capabilities, and any
other operational characteristic identified under Sec. 960.6(c), except
to the extent necessitated by an emergency posing an imminent and
substantial threat of harm to human life, property, the environment or
the remote sensing space system itself. In such emergency cases, the
licensee shall return to previously approved operations as soon as
circumstances permit. Any request to depart from approved orbital and
data collection characteristics of the system for an extended period
shall be in the form of a timely request to amend the license.
Sec. 960.14 Investment agreements.
(a)(1) Domestic investment agreements. If the acquisition of any
security or other financial interest in a licensee results in any
domestic person becoming the beneficial owner of 10 percent or more of
such securities or class of such securities, or of any other financial
interest in the licensee, the
[[Page 59330]]
acquisition constitutes a material change in the information supporting
the license and requires notification under Sec. 960.13. The licensee
shall file this notification within ten days of the acquisition and
shall include:
(i) The name of the acquirer;
(ii) The date of acquisition;
(iii) The number of shares of securities or the extent of any other
financial interest in the licensee owned; and
(iv) Such other information as NOAA may specify.
(2) If the acquisition of any security or other financial interest
in a licensee results in any domestic person becoming the beneficial
owner of 25 percent or more of such class of securities, or any other
financial interest of the licensee, the licensee shall provide
assurance that such acquisition will not result in a transfer of
sufficient voting power to control its management, policies, and/or
operations. The licensee shall file a statement within 10 days of such
acquisition setting forth the basis for its conclusion that no such
transfer of voting power will occur and include the following
information in addition to that required by paragraph (a)(1) of this
section:
(i) The identity and residence of the beneficial owner and of all
other persons by whom or on whose behalf the purchases are to be
effected;
(ii) The number of shares of such securities or the extent of any
other financial interest in the licensee which are beneficially owned,
and the number of shares or other financial interests which there is a
right to acquire, directly or indirectly, by
(A) Such person, and
(B) By each affiliate of such person, giving the background,
identity, and residence of each such associate;
(iii) Information as to any contracts, arrangements, or
understandings with any person with respect to any securities of or
other financial interests in the licensee, including but not limited to
transfer of any of the securities, joint ventures, loan or option
arrangements, guaranties of loans, guaranties against loss or
guaranties of profits, division of losses or profits, or the giving or
withholding of proxies, naming the persons with whom such contracts,
arrangements, or understandings have been entered into, and giving the
details thereof;
(iv) The number of shares of the securities and the particular
class of securities, or the extent of the other financial interests in
the licensee, which are retained by existing beneficial owners; and
(v) Such additional information, as NOAA may prescribe as necessary
or appropriate to protect the national security interests or
international obligations of the United States.
(3) Before any domestic person becomes the beneficial owner of 40
percent or more of any securities, any class of securities, or any
other financial interest of the licensee, the licensee must file an
amendment application in accordance with Sec. 960.13 at least 90 days
prior to acquisition.
(b)(1) Foreign investment agreements. If the acquisition of any
security or other financial interest in a licensee results in any
foreign person or nation becoming the beneficial owner of 5 percent or
more of such securities or class of such securities, or of any other
financial interest in the licensee, the acquisition constitutes a
material change in the information supporting the license and requires
notification under Sec. 960.13 unless the licensee has provided notice
in advance of acquisition pursuant to paragraphs (b) (2)-(5) of this
section. The licensee shall file this notification within ten days of
the acquisition and shall include:
(i) The name of the acquirer;
(ii) The date of acquisition;
(iii) The number of shares of securities or the extent of any other
financial interest in the licensee owned;
(iv) Any updates to the technology control plan, if necessary; and
(v) Such other information as NOAA may specify.
(2) Before any foreign person or nation, becomes the beneficial
owner or 15 percent or more of any securities, any class of securities,
or any other financial interest of the licensee, the licensee shall
provide assurance that such acquisition will not result in a transfer
of sufficient voting power to control its management, policies, and/or
operations. The licensee shall file a statement setting forth the basis
for its conclusion that no such transfer will occur and include the
following information in addition to that required by paragraph (b)(1)
of this section:
(i) The identity, residence, and citizenship of the beneficial
owner and of all other foreign persons or nations by whom or on whose
behalf the purchases are to be effected;
(ii) The number of shares of such securities or the extent of any
other financial interest in the licensee which are beneficially owned,
and the number of shares or other financial interests which there is a
right to acquire, directly or indirectly, by
(A) Such foreign person or nation, and
(B) By each affiliate of such foreign person or nation, giving the
background, identity, residence and citizenship of each such associate;
(iii) Information as to any contracts, arrangements, or
understanding with any foreign person or nation with respect to any
securities of or other financial interests in the licensee, including
but not limited to transfer of any of the securities, joint ventures,
loan or option arrangements, guaranties of loans, guaranties against
loss or guaranties of profits, division of losses or profits, or the
giving or withholding of proxies, naming the persons with whom such
contracts, arrangements, or understandings have been entered into, and
giving the details thereof;
(iv) The number of shares of the securities and the particular
class of securities, or the extent of the other financial interests in
the licensee, which are retained by existing beneficial owners;
(v) Any updates to the technology control plan, if necessary; and
(vi) Such additional information, as NOAA may prescribe as
necessary or appropriate to protect the national security interests or
international obligations of the United States.
(3) The statement required by this section shall be provided at
least 60 days prior to acquisition by foreign persons or nations. The
statement shall be filed with the relevant investment agreement which
shall be deemed a ``significant or substantial agreement'' and reviewed
in accordance with Sec. 960.12.
(4) Before any foreign person(s) or nation(s) collectively become
the beneficial owners of more than 40 percent of any securities, any
class of securities, or any other financial interest of the licensee,
the licensee must file an amendment application in accordance with
Sec. 960.13 at least 90 days prior to acquisition. The amendment
application must clearly rebut the presumption that the acquisition
will result in the transfer of sufficient voting power to control the
licensee's management, policies, and/or operations and shall include a
certification, in writing, to the Administrator that no foreign persons
or nations, either individually or collectively, can influence the
Licensee's corporate activity related to its obligations under the
terms and conditions of its license; this certification must show that
control over the Board of Directors is still exercised by the majority
U.S. shareholders and explain how the Board of Directors insures that
there is no undue influence exercised by the foreign shareholders on
the appointment of key officers of the corporation.
[[Page 59331]]
(5) No amendment shall be granted where more than 49% of the voting
interest will be beneficially owned by foreign persons or nations.
(c) If the acquisition by any person(s) or nation(s) of any
security or other financial interest of the licensee, regardless of the
percentage acquired, will result in a transfer of sufficient voting
power to control the management, policies, and/or operations of the
licensee; or if any person(s) or nation(s) will through a contractual
relationship or any other means obtain the ability to control the
management, policies and/or operations of the licensee, the licensee
must file an amendment application in accordance with Sec. 960.13 at
least 90 days prior to acquisition. There is a strong presumption that
the transfer of such an interest to foreign persons or nations will not
preserve the national security or international obligations of the
United States and will not be approved.
(d) The provisions of this section apply only to licensees that are
subject to U.S. jurisdiction or control under Sec. 960.2(a). Foreign
persons that are subject to U.S. jurisdiction or control under
Sec. 960.2(b) shall report changes in their financial interests in
accordance with the terms and conditions of their licensees.
Sec. 960.15 Certain rights not conferred by license.
Issuance of a license does not affect the authority of the Federal
Communications Commission under the Communications Act of 1934 (47
U.S.C. 151 et seq.), or the authority of the Secretary of
Transportation under the Commercial Space Launch Act of 1984 (49 U.S.C.
app. 2601 et seq.), the authority of the Secretary under the Export
Administration Act (50 U.S.C. app. 2401 et seq.), or the authority of
the Secretary of State under the Arms Export Control Act (22 U.S.C.
2778).
Subpart C--Enforcement Procedures
Sec. 960.16 General.
The Administrator may take appropriate actions against a licensee
if the licensee fails to comply with the Act, these regulations, or any
condition or restriction in the license, Such actions may include any
or all of the following: pursuit of judicial determinations to
terminate, modify or suspend licenses or to terminate licensed
operations, administratively imposed civil penalties, and seizure
pursuant to warrant. Such actions shall be taken in accordance with
this subpart.
Sec. 960.17 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 system without possession of a
valid license issued under the Act and these regulations;
(b) Violate any provision of the Act or these regulations or any
term, condition, or restriction of the license; or
(c) Violate any order, directive, or other notice issued by the
Secretary in accordance with Sec. 960.10(b)(2) to inform the licensee
of any temporary restrictions imposed or necessary actions to be
followed during periods when national security or international
obligations/and or foreign policies may be compromised.
Sec. 960.18 Sanctions.
As authorized by section 203(a) of the Act, if the Administrator
determines that the licensee has substantially failed to comply with
the Act, these regulations, or any term, condition or restriction of
the license, the Administrator 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. For purposes of this section, failure to comply with the Act,
these regulations or a term, condition, or restriction of a license or
of the Act shall be considered substantial where
(a) The failure is knowing; or
(b) The failure occurs after notice by the Administrator; or
(c) The licensee has been advised that it failed to comply with an
international obligation, foreign policy or national security concern
of the United States.
Sec. 960.19 Civil penalties.
(a) In addition to the sanctions provided in Sec. 960.16, any
person who violates any provision of the Act or of any license issued
thereunder or regulation contained in this part may be assessed a civil
penalty by the Administrator of not more that $10,000 for each
violation. Each day of operation in violation constitutes a separate
violation.
(b) When the Administrator proposes the assessment of a civil
penalty under this section, the Administrator will serve upon the
licensee by mail a Notice of Civil Penalty and Assessment (Notice)
containing:
(1) A concise statement of the facts believed to show a violation;
(2) A specific reference to the provisions of the Act, regulation,
or license allegedly violated;
(3) The amount of the proposed penalty in accordance with paragraph
(a) of this section.
(c) Within 30 days after receipt of the Notice, the licensee may
request a hearing by serving a written request on the Administrator
either in person or by certified or registered mail, return receipt
requested, at the address specified in the Notice. Such hearing shall
be held in accordance with procedures set forth at 15 CFR part 904,
supart C.
(d) If the respondent does not request a hearing within thirty days
of the date of the Notice, the civil penalty and the assessment shall
become the final determination of the Administrator.
Sec. 960.20 Seizure.
If the Administrator believes that any object, record, or report,
was used, is being used or is likely to be used in violation of the
Act, these regulations or any condition or restriction of the license,
the Administrator may seek a warrant from a magistrate to seize such
item(s) by showing probable cause for this belief. Seizure shall be
conducted in accordance with 15 CFR part 904, subpart F.
[FR Doc. 97-28948 Filed 10-31-97; 8:45 am]
BILLING CODE 3510-12-M
