[Federal Register Volume 63, Number 87 (Wednesday, May 6, 1998)]
[Rules and Regulations]
[Pages 24917-24927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11970]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 911
[Docket No. 970725178-8087-02]
RIN 0648-AK04
Policies and Procedures Regarding Use of the NOAA Space-Based
Data Collection Systems
AGENCY: National Oceanic and Atmospheric Administration, Department of
Commerce.
ACTION: Final rule.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is
issuing a final rule that revises its policies and procedures for
authorizing the use of its space-based Data Collection Systems (DCS)
which operate on NOAA's Geostationary Operational Environmental
Satellites (GOES) and Polar-orbiting Operational Environmental
Satellites (POES). This final rule revises the current policy on the
use of the GOES DCS, and formalizes a new policy for the use of the
Argos Data Collection and Location System (Argos DCS) which flies on
the POES. The rule harmonizes, as much as practicable, the system use
policies for the two systems, which in the past have been disparate.
The fundamental principle underlying this rule is that the Government
will not allow its space-based DCS to be used where there are
commercial space-based services available that fulfill users'
requirements.
DATES: Effective June 5, 1998.
ADDRESSES: Send comments on the collection information to Dane Clark,
NOAA, National Environmental Satellite, Data, and Information Service,
Direct Services Division (E/SP3), 4700 Silver Hill Road, Stop 9909,
Room 3320,
[[Page 24918]]
Washington, DC 20223-9909, and to the Office of Management and Budget
(OMB) at the Office of Information and Regulatory Affairs, OMB,
Washington, DC 20503 (Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT:
Dane Clark at (301) 457-5681, e-mail: satinfo@nesdis.noaa.gov; or Kira
Alvarez at (301) 713-0053, e-mail: Kira.Alvarez@noaa.gov.
SUPPLEMENTARY INFORMATION: For general background on NOAA's Data
Collection Systems (Argos DCS and GOES DCS), please refer to the notice
of proposed rulemaking published in the Federal Register on September
9, 1997, at 62 FR 47388.
In 1996, NOAA recognized that a commercial industry was starting to
emerge in the area of data collection and location services (e.g.,
Mobile Space Services). Guided by the U.S. Government's long-standing
policy against competing with the private sector, NOAA, in October 8,
1996, (61 FR 52775), announced that it would no longer promote the use
of the Argos DCS for commercial non-environmental applications. NOAA,
moreover, has been eager to explore new opportunities for meeting
mission requirements that are presented by the development of private
space-based DCS. To explore these opportunities, NOAA initiated a
dialogue among users of the systems and both public and private sector
service providers by hosting a public meeting in December 1996. This
meeting brought together more than 100 individuals representing current
and planned space-based data collection service providers and users to
present, discuss and document pertinent information necessary to
reevaluate and reexamine government practice and policy.
As demonstrated at the public meeting, there are operational and
soon-to-be operational commercial DCS. However, the government users of
the current NOAA-provided systems require an established operational
capability that meets users' requirements from the private sector
service providers before contemplating a change away from these
government-provided systems. Based on the representations, both oral
and written, made at the public meeting, the commercial providers are
currently unable to provide such a capability to the vast majority of
government users. Consequently, there is still a need for the
Government to provide a space-based data collection system for
government use until such a time as the government's requirements can
be met by the commercial sector. However, given the evolving state of
the commercial industry, government users must take into account the
progress and development of these commercial systems. As a result, any
new system use policy should be focused on meeting the requirements of
the government users, while also encouraging them to canvass the
commercial marketplace on a periodic basis.
The participants expressed interest in the issuance of new
consolidated regulations that clarify the system use policies for the
Argos DCS and the GOES DCS and that build in the incentive to
investigate the opportunities available from the private sector. The
participants indicated that new regulations establishing a clear set of
criteria for allowing access to the government systems would accord
them the predictability and transparency necessary to make rational
business decisions.
On September 9, 1997, (62 FR 47388), NOAA published a proposed rule
in the Federal Register. Comments on the proposed rule were invited
through November 10, 1997. A total of eight letters of comment on the
proposed rule were received.
Response to Comments
Comment 1: The statements in the notice of proposed rulemaking that
commercial providers are currently unable to provide a demonstrated
operational capability to the vast majority of government users and
that consequently, there is still a need for the Government to provide
a DCS for government use until such time as the Government's
requirements can be met by the commercial sector, are categorically
incorrect.
Response: NOAA has determined that there is still a need for the
Government to provide a space-based DCS. This determination was made
with the consultation of a U.S. Government (USG) users group, which
advised NOAA on the government requirements for space-based DCS. These
government agencies determined their own current and future
requirements and then conveyed the same to NOAA. NOAA and the user
group assessed the commercial alternatives available and compared them
with the existing government services and determined that no commercial
service currently available had the requisite demonstrated operational
capability to meet all of the USG user requirements. Nonetheless, this
rulemaking serves notice that this situation will not be indefinite and
viable commercial space-based alternatives may eventually obviate the
need for NOAA to operate its own space-based DCS.
Comment 2: The 1991 U.S. Space Policy encouraging U.S. agencies to
promote access to excess U.S. space-based assets is ``outdated and no
longer applicable.''
Response: NOAA agrees, and in this regard, announced in the Federal
Register on October 8, 1996, (61 FR 52775), that it was no longer
promoting commercial use of the Argos System.
Comment 3: A major point of contention is the degree to which
particular applications are conducted for environmental protection
versus economic considerations. NOAA must recognize that certain
applications may serve both purposes. What is the definition of cost-
effectiveness? Full cost accounting should be used, including the full
cost of providing the NOAA DCS service. NOAA should not use user
switching costs in this assessment.
Response: Cost-effectiveness is only a valid criterion to be
considered in the case of government agencies. Furthermore, it is the
individual agency that determines what is cost-effective for their
particular agency, as a user of the system. It is not a valid
consideration for non-governmental entities. Moreover, for non-
governmental entities, not only must the use be environmental, but
there is the additional criterion that there must be government
interest in the collection of the data.
Comment 4: In section 911.1, Purpose, change the italicized
language: ``The regulations are intended to facilitate the collection
of environmental data as well as other such data which the Government
is interested in collecting, while at the same time not disadvantaging
the development of the commercial space-based services in this
sector.'' The following is proposed as a replacement: ``The regulations
are intended to facilitate the collection of environmental data as well
as other such data which the Government is interested in collecting,
and to allow for the use of commercial space-based services where
possible while precluding all direct or indirect government competition
with such services.''
Response: The proposed change is inaccurate because it implies that
NOAA has the authority to disallow the use of commercial services by
other USG agencies. Moreover, NOAA has not taken any steps to
discourage the use of commercial services. However, the language will
be changed to clarify NOAA's position as follows:
``The regulations are intended to facilitate the collection of
[[Page 24919]]
environmental data as well as other such data which the Government is
interested in collecting. In those instances where space-based
commercial systems do not meet users' requirements, the intent is to
not disadvantage the development of the commercial space-based services
in this sector.''
Comment 5: ``The revised regulations should explicitly state that
all non-government users of government spectrum must be licensed by the
Federal Communications Commission (FCC). This NOAA must include as an
integral part of its review and approval process for Argos System use
certification that the candidate user of Argos has met these
requirements.''
Response: While an explicit statement in the regulations that non-
government users subject to U.S. jurisdiction must be licensed by the
FCC is appropriate, it would be inconsistent with Administration
regulatory policy to include a certification requirement pertaining to
FCC license procedures that essentially duplicates existing
requirements. However, it should be noted that System Use Agreements
will include an obligation that users must obtain authorization from
the appropriate national agencies, in the case of the United States--
the FCC, to transmit on the assigned frequencies and to comply with all
applicable national telecommunications laws and regulations.
Comment 6: NOAA should set up a vetting process similar to the
FCC's, which includes the publication at designated intervals, of a
Request for Information in the Commerce Business Daily, that would
include the details of user requests since the previous notice, and
would allow for timely comment by commercial providers before the
signing of any agreements.
Response: Requiring the completion of such an administrative
process before allowing access to the NOAA DCS would create an unfair
burden on potential users and, in some cases would interfere with the
ability of certain users to have timely access to data which may be
mission critical. Under the USG's current regulatory reform program,
any new regulatory burdens on the public must be kept to the minimum
necessary to achieve the stated goal and this proposed administrative
process would clearly be contrary to this policy.
Comment 7: The scope of the regulations is too narrow and these
regulations should be applicable globally. As a result, include in
Sec. 911.2, Scope, the following language: ``regardless of whether an
applicant is subject to the jurisdiction and control of the United
States.''
Response: This proposed statement overreaches the territorial
jurisdiction of the United States, and as such is inappropriate.
However, NOAA agrees with the observation that the Argos DCS is a
global system which should be operated under a consistent and uniform
set of globally applicable rules. As a result, the Argos Operations
Committee has adopted these regulations as part of the governing rules
for the system.
Comment 8: Under which category of users would international
government users fall?
Response: International government users would fall under the
definition of government users.
Comment 9: ``Government Interest'' is defined too ambiguously.
Response: By necessity, this definition is broad. It would be
impractical to give the exhaustive list of the relevant missions of all
government agencies that utilize these data for operational and
research purposes.
Comment 10: The definitions of ``Environmental Data,''
``Environmental Protection Data,'' and ``Environmental Measurement
Data'' are too broad. In addition, the definitions of ``Environmental
Measurement Data'' and ``Environmental Protection Data'' should include
the following statement: ``It is recognized that in many cases,
commercial services may be available that adequately address user
requirements and that these user needs may be motivated by reasons in
addition to environmental-related concerns. Instances of such cases
will be viewed as non-environmental applications for the purposes of
these regulations.''
Response: These definitions accurately reflect the environmental
stewardship mission requirements of the primary USG agencies for which
these systems are operated. And because these systems are primarily
operated for environmental purposes, these definitions serve as a
primary justification for use of the system. However, we do understand
the concerns expressed in the comment, and that is why NOAA also
requires that, for non-governmental use of the system, the user show
that there is a government interest in the collection of the data. We
note, though, that the statement of policy proposed in the comment is
inappropriate in the definition section of a regulation. Such a
statement, moreover, concerns the use of the system for cost-effective
purposes, and as we noted in comment 3 above, except in the case of
government agencies, cost-effectiveness is not an appropriate
consideration for potential users of the system. We feel that the
operative sections of the regulations already take into account the
concerns expressed in the commenter's proposed statement.
Comment 11: It is unclear what types of events fall under the
definition of Episodic Use. Please clarify with examples.
Response: NOAA agrees, and as a result, examples of such uses have
been added to the final rule. These examples include: Arctic
expeditions and scientific campaigns into remote areas, which represent
events in which there is a significant possibility for the loss of
life.
Comment 12: Who decides whether there are commercial services that
meet the users' requirements? How will NOAA validate user requirements?
Response: Users determine whether there are commercial space-based
services that meet their program's requirements. Not only are the users
asked to provide the reasons why they have determined that they need to
use the Argos System, but they must also certify that there are no
commercial space-based services which meet their requirements.
Comment 13: Why was an explanation of the factors of the users'
requirements that may not be met by commercial space-based services
included in the preamble, but not in the actual proposed rule?
Response: NOAA agrees that the factors should be included in the
text of the rule; as a result, these factors have now been incorporated
into Sec. 911.4(b).
Comment 14: The reduction in non-environmental use of the system,
while ``well intended, * * * fails to address the real issue that, in
the majority of cases, non-environmental user requirements can be met
by commercial providers.''
Response: We reiterate the fact that the primary requirement for
use of the system is that there be no commercial space-based services
which meet the users' requirements. Only after a user has determined
that fact, and certified to it, will NOAA apply the other criteria to
determine if they are qualified to use the system. For non-
environmental use of the system there are only two instances where use
of the system is allowed: (1) For episodic uses, where there is the
significant possibility of loss of life, which is consonant with NOAA's
(and all USG agencies' inherent) public safety mission(s); and (2) for
government users and non-profit users where there is a governmental
interest. For government users there may be instances where the use of
commercial services is not
[[Page 24920]]
appropriate due to the sensitive nature of the applications (such as
for national security or law enforcement purposes); however, this is a
determination made by the individual agency, not NOAA.
As we have stated previously, NOAA will monitor the commercial
sector to determine whether they are developing and implementing the
necessary capabilities. We encourage service providers to continue to
interact with NOAA and keep us informed of their progress. We are
committed to facilitating government-industry interface and dialogue.
In fact we are already aware of several government agencies that are
testing and using commercial space-based services.
Comment 15: All agreements for non-governmental, non-environmental
use should be terminated upon publication of a final rule and no new
non-governmental, non-environmental use agreements should be signed
from this point forward.
Response: NOAA cannot arbitrarily terminate all non-governmental,
non-environmental agreements upon publication of the final rule.
However, we have stated previously that such agreements will not be
renewed and will terminate upon expiration. We have also stated
previously that no new non-governmental, non-environmental agreements
will be approved, with the exception of those for episodic use, which
are consonant with our public safety mission.
Comment 16: Section 911.7(a) should be amended; the following
language should be included at the end: ``However, the existence of
viable commercial space-based alternatives may eventually obviate the
need for NOAA to operate its own satellite-based DCS.''
Response: NOAA agrees that it must convey a strong signal that it
is determined not to compete with viable commercial providers of space-
based DCS services. NOAA has incorporated the suggested language, with
a slight modification; Sec. 911.7(a) now reads: ``NOAA expects to
continue to operate DCS on its geostationary and polar-orbiting
satellites, subject to the availability of future appropriations.
However, viable commercial space-based alternatives may eventually
obviate the need for NOAA to operate its own space-based DCS.''
Comment 17: What is the reasoning behind limiting non-environment
users to 5 percent of the terminals in use for the Argos DCS. With the
expected decline in users, the non-environment users will continually
need to remove terminals from the system. What will be the selection
process in removing those terminals (which users will be impacted)? the
existing limit has never created a problem for the operation of the
system.
Response: NOAA established these systems to further its
environmental stewardship responsibilities. Moreover, the radio
spectrum frequencies within which these systems operate are allocated
primarily for environmental use. Thus by strictly limiting the
nonenvironmental use of the system to 5 percent of total system use,
the integrity of the use of the allocated frequencies is maintained,
while also accomplishing the additional goal of not competing unfairly
with the private sector.
In accordance with this rule, current non-governmental, non-
episodic, non-environmental agreements will not be renewed. Terminals
operating under expired agreements should be deactivated at the end of
the current agreement. Since any remaining non-environmental uses of
the system will only be approved for one year terms, this will allow
for an orderly decrease in the non-environmental use of the system.
Comment 18: There is concern that the statement: ``The fundamental
principle underlying these regulations is that the Government will not
allow its space-based DCS to be used where there are commercial
services available that fulfill the users' requirements'', indicates
not only that users will have to convert to commercial services when/
where available, but also an eventual retreat by the Government from
providing a data collection service without a definite discussion of
how and when that would happen.
Response: Government user requirements will continue to dictate
which instruments fly on government assets. Moreover, it is
inappropriate for the Government to compete unfairly with the private
sector. At this point in time, NOAA, in consultation with government
users, has determined that there are no commercial providers of space-
based services that can meet the government's needs, and so the
Government will continue to operate its own systems. While this
rulemaking serves notice that this situation will not be indefinite, it
is impossible given the state of development in the commercial
marketplace to determine with any accuracy when or how the full
transition to the private sector will take place. When such a
transition is warranted, NOAA will provide, to the maximum extent
practicable, advance notice to the affected users to allow for an
orderly transition.''
Comment 19: We believe that canvassing the market every 3-5 years
is not enough. Also, what level of diligence does this require?
Response: NOAA has decreased the duration of the System Use
Agreements in order to create a forcing function to make the users
periodically reassess their requirements and their options for meeting
them. This creates a dynamic process wherein applications and renewals
have varying durations for 6 months to 5 years, and are received on a
continuing basis. Hence, the canvassing of the commercial marketplace
will take place on a continuing basis.
For existing users of the system, the following outlines the
schedule for transitioning to new system use agreements:
1. Government and non-profit, environmental users of the Argos DCS
shall be required to submit a new system use agreement within 3 years
from the effective date of this rule or upon expiration of their
current system use agreement, whichever occurs first;
2. Government, non-profit, and non-government, environmental users
of the GOES DCS shall be required to submit a new system use agreement
within 5 years from the effective date of this rule, or upon expiration
of their current system use agreement, whichever occurs first;
3. Government and non-profit, non-environmental users of the Argos
DCS shall be required to submit a new system use agreement within 1
year from the effective date of this rule or upon expiration of their
current system use agreement, whichever occurs first;
4. Non-government, environmental users of the Argos DCS shall be
required to submit a new system use agreement within 1 year from the
effective date of this rule, or upon expiration of their current
agreement, whichever comes first; and
5. Non-government, non-environmental users of the Argos DCS will be
required to submit new system use agreements within 1 year from the
effective date of this rule, or upon expiration of their current
agreement, whichever comes first.
Please note, however, that submission of a new system use agreement
does not imply acceptance of such an agreement, especially for non-
governmental, non-environmental uses.
As to the level of diligence, NOAA requires a certification for
each user that the use of the NOAA DCS is required because there are no
commercial space-based services that meet its program requirements.
[[Page 24921]]
Comment 20: There needs to be further detail provided on what the
``platform compatibility'' factor is and how it is determined.
Response: NOAA agrees that this term should be defined. The
``platform compatibility'' factor addresses the compatibility of the
platform with the space segment of the system and includes elements
such as message length and composition, signal strength, as well as
transmission protocol (e.g., continuous versus event driven).
Comment 21: These proposed rules do not support the needs of small
businesses, the commercialization of space, the needs of the
environmental users and the Government's requirements to allow access
to underutilized assets of the Government to non-governmental users.
Response: As noted in the notice of proposed rulemaking, NOAA had
previously made the excess capacity of its DCS available to non-NOAA
users. This was consistent with the National Space Policy then in
effect, which encouraged government agencies to promote commercial
access to excess U.S.C. space-based assets in order to promote the
growth of the emerging U.S. commercial space industry. However, by
1996, NOAA recognized that a commercial industry was staring to emerge
in the area of space-based data collection and location services. Given
the U.S. Government's long-standing policy against competing with the
private sector, NOAA undertook a reassessment of its role in this
market sector. This reassessment eventually led to those new
regulations.
Changes from the Proposed Rule
For a description of the proposed rule, see 62 FR 47388. The
following seven changes have been made to the text of the proposed rule
in response to comments.
In Sec. 911.1, language was added to clarify the intent of these
regulations.
The definition of ``episode use'' in Sec. 911.3, was clarified with
further examples.
The definition of ``government use'' in Sec. 911.3 was clarified,
and now specifies that government approval is necessary in advance.
The definition of ``government user'' in Sec. 911.3 was clarified
to specify that international government users are included.
A definition of ``platform compatibility'' was added to Sec. 911.3.
Section 911.4(b)(2) was added, which lists the factors that help
users determine when commercial space-based services meet their
requirements, was included. This list was included in the preamble of
the notice of proposed rulemaking, but not in the actual rule.
A statement was added at the end of Sec. 911.&(a) which qualifies
the first sentence and states that while NOAA expects to continue to
operate a DCS, in the future, the existence of viable commercial space-
based systems may eventually obviate this need.
Additional Technical Changes to the Proposed Rule
A definition of ``Director'' was added to Sec. 911.3, which defines
the term as the Director of the Office of Satellite Data Processing and
Distribution of the National Environmental Satellite, Data, and
Information Service.
The term ``space-based'' was included in Sec. 911.4(b) to modify
the term ``commercial services'' to clarify the fact that NOAA will be
looking at whether other space-based alternatives to the use of the
NOAA DCS are available. This allows the comparison between systems to
be a more accurate ``apples to apples'' comparison.
The requirements of former Sec. 911.4(d) have now been incorporated
into Sec. 911.4(c). These sections were rearranged after some
consideration, because the new arrangement leads to a more logical flow
and makes the regulatory scheme easier to understand.
The section previously classified as Sec. 911.4(c)(4), and which is
now classified as Sec. 911.4(c)(5), was revised to specify that the
experimental use provisions applied to both NOAA DCS services. The name
of this category was also changed from ``experimental use'' to
``testing use'' to better reflect the nature of the use; this change
was also made in Secs. 911.4(d)(5) and 911.5(e)(2).
Section 911.5(a)(2) was added, which directs persons who are
interested in using the NOAA DCS to contact the Director.
A language change in Sec. 911.5(b)(3) reflects that it is not by
choice, but rather by necessity that a user requires access to the NOAA
DCS.
Section 911.5(d)(5) was added; this is a conforming change that was
necessary in order to reflect that the experimental use of the Argos
System is also allowed. As a result, it was necessary to indicate the
length of time of approval of agreements for this category of use of
the system.
Appendix B was added to map out the system use policy for the GOES
DCS and has been included to help users understand how the regulations
apply to that system.
Classification
A. Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that the proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities. No comments were received regarding this certification.
As such, no final regulatory flexibility analysis has been prepared.
B. Paperwork Reduction Act of 1995 (35 U.S.C. 3500 et. seq.)
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act (PRA). The collection of this
information has been approved by OMB Control Number 0648-0157.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection of information, subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
Public reporting burden for this collection of information is
estimated to average 3 hours per GOES agreement and 30 minutes per
Argos agreement, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Send comments regarding this collection of information to Dane Clark,
NOAA, National Environmental Satellite, Data, and Information Service,
Direct Services Division (E/SP3), 4700 Silver Hill Road, Stop 9909,
Room 3320, Washington, DC. 20233-9909, and to OMB at the Office of
Information and Regulatory Affairs, Washington, DC 20503 (Attention:
NOAA Desk Officer).
C. National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Publication of the final regulations does not constitute a major
Federal action significantly affecting the quality of the human
environment. Therefore, an environmental impact statement is not
required.
D. Executive Order 12866
This rule has been determined to be not significant for purposes of
E.O. 12866.
[[Page 24922]]
List of Subjects in 15 CFR part 911
Scientific equipment, Space transportation and exploration.
Dated: April 28, 1998.
Robert S. Winokur,
Assistant Administrator for Satellite and Information Services.
Accordingly, for the reasons set forth above part 911 of Title 15
of the Code of Federal Regulations is revised to read as follows:
PART 911--POLICIES AND PROCEDURES CONCERNING USE OF THE NOAA SPACE-
BASED DATA COLLECTION SYSTEMS
Sec.
911.1 Purpose.
911.2 Scope.
911.3 Definitions.
911.4 Use of the NOAA Data Collection Systems.
911.5 NOAA Data Collection Systems Use Agreements.
911.6 Treatment of data.
911.7 Continuation of the NOAA Data Collection Systems.
911.8 Technical requirements.
Appendix A to Part 911--Argos DCS Use Policy Diagram
Appendix B to Part 911--GOES DCS Use Policy Diagram
Authority: 15 U.S.C. 313, 49 U.S.C. 44720; 15 U.S.C. 1525; 7
U.S.C. 450b; 5 U.S.C. 552.
Sec. 911.1 Purpose.
These regulations set forth the procedural, informational and
technical requirements for use of the NOAA Data Collection Systems
(DCS). In addition, they establish the criteria NOAA will employ when
making determinations as to whether to authorize the use of its space-
based DCS. The regulations are intended to facilitate the collection of
environmental data as well as other such data which the Government is
interested in collecting. In those instances where space-based
commercial systems do not meet users' requirements, the intent is to
not disadvantage the development of the commercial space-based services
in this sector. Obtaining a system use agreement to operate data
collection platforms pursuant to these regulations does not affect
related licensing requirements of other Federal agencies such as the
Federal Communications Commission.
Sec. 911.2 Scope.
(a) These regulations apply to any person subject to the
jurisdiction or control of the United States who operates or proposes
to operate data collection platforms to be used with the NOAA DCS
either directly or through an affiliate or subsidiary. For the purposes
of these regulations a person is subject to the jurisdiction or control
of the United States if such person is:
(1) An individual who is a U.S. citizen; or
(2) A corporation, partnership, association, or other entity
organized or existing under the laws of any state, territory, or
possession of the United States.
(b) These regulations apply to all existing Geostationary
Operational Environmental Satellite (GOES) and Argos DCS users as well
as all future applications for NOAA DCS use.
Sec. 911.3 Definitions.
For purposes of this part:
(a) Approving authority means NOAA for the GOES DCS; and it means
the Argos Participating Agencies, via the Argos Operations Committee,
for the Argos DCS.
(b) Argos DCS means the system which collects data from fixed and
moving platforms and provides platform location data. This system
consists of platforms, the Argos French instrument on the Polar-
orbiting Operational Environmental Satellites (POES) and other
international satellites; a ground processing system; and telemetry
ground stations.
(c) Argos participating agencies means those agencies of the United
States and other countries that participate in the management of the
Argos DCS.
(d) Assistant Administrator means the Assistant Administrator for
Satellite and Information Services, NOAA, or his/her designee.
(e) Director means the Director of the Office of Satellite Data
Processing and Distribution for the National Environmental Satellite,
Data, and Information Service of NOAA.
(f) Environmental data means environmental measurement data for the
purpose of using the GOES DCS; and it means environmental measurement
and environmental protection data for the purpose of using the Argos
DCS.
(g) Environmental measurement data means data that relate to the
characteristics of the Earth and its natural phenomena by helping to
better understand, evaluate, or monitor its natural resources.
(h) Environmental protection data means data that relate to the
characteristics of the Earth and its environment (including its
ecosystems and the species which inhabit them) by helping to protect
against any unreasonable adverse effects thereto.
(i) Episodic use means the use of the system for short events where
there is a significant possibility of loss of life, such as for Arctic
expeditions or scientific campaigns into remote areas.
(j) Government interest means that the use is determined in advance
to be of interest to one or more governmental entities of the United
States, France or, once they have become an Argos Participating Agency,
Japan or a European Organization for the Exploitation of Meteorological
Satellites (EUMETSAT) member state; or also, in the case of the GOES
DCS, a state or local government.
(k) Government user means agencies of international governmental
organizations, national government or any subdivision thereof, or any
of those agencies' contractors or grantees, so long as the contractor
is using the data collected by the NOAA DCS to fulfill its contractual
obligations to the government agency or in the case of a grantee that
these data are being used in accordance with the statement of work for
the award.
(l) NOAA DCS means the GOES and Argos space-based DCS.
(m) Non-profit user means a not-for-profit academic, research, or
other non-governmental organization, which is using these data, for
education and/or scientific, non-commercial purposes.
(n) Operational use means the use of data in a situation where the
utility of the data are significantly reduced if not collected or
delivered in a specific time window. This includes situations where
extensive preparation work is in place and a delay in acquisition of
data would jeopardize the project.
(o) Platform compatibility means the compatibility of the platform
with the space segment of the system, and includes elements such as
message length and composition, signal strength, and transmission
protocol (e.g., continuous versus event drive).
(p) Testing use means the use of the NOAA DCS by manufacturers of
platforms for use in conjunction with the NOAA DCS by manufacturers of
platforms for use in conjunction with the NOAA DCS, for the limited
purpose of testing and certifying the compatibility of new platforms
with the technical requirements of the NOAA DCS.
(q) User means the entity and/or organization which owns or
operates user platforms for the purpose of collecting and transmitting
data through the NOAA DCS.
(r) User platform means devices, designed in accordance with the
specifications delineated and approved by the Approving Authority, used
for the in-situ collection and subsequent transmission of data via the
NOAA DCS. Those devices which are used in conjunction with the GOES DCS
are
[[Page 24923]]
referred to as data collection platforms (DCP) and those which are used
in conjunction with the Argos DCS are referred to as Platform
Transmitter Terminals (PTT). For purposes of these regulations, the
terms ``user platform,'' ``DCP'' and ``PTT'' are interchangeable.
(s) User requirement means the requirement expressed and explained
in the System Use Agreement.
Sec. 811.4 Use of the NOAA Data Collection Systems.
(a) Use of the NOAA DCS will only be authorized in accordance with
the conditions and requirements set forth in paragraphs (b), (c), (d),
(e), and (f) of this section.
(b)(1) Use of the NOAA DCS will only be authorized where it is
determined that there are no commercial space-based services available
that meet the user's requirements.
(2) A determination under paragraph (b)(1) of this section must be
based on such factors as satellite coverage, accuracy, data throughput,
platform power consumption, size and weight, service continuity and
reliability, platform compatibility, system access mode, and, in the
case of government agencies, cost-effectiveness.
(c)(1) Except as provided in paragraphs (c)(2), (3), (4), and (5)
of this section, NOAA DCS shall only be used for the collection of
environmental data by governmental and/or non-profit users.
(2) Non-governmental, environmental use of the NOAA DCS is only
authorized where there is a Government interest in the collection and/
or receipt of the data.
(3) Except as provided in paragraph (c)(4) of this section, non-
environmental use of the Argos DCS is only authorized for government
use and non-profit users where there is a government interest. Non-
environmental use of the system shall not exceed five percent of the
system's total use.
(4) Episodic use of the Argos DCS may also be authorized in
specific instances when there is a significant possibility for loss of
life. Such use shall be closely monitored.
(5) Testing use of the NOAA DCS will only be authorized for
manufacturers of NOAA DCS platforms, that require access to the system
in order to test and certify prototype and production models.
(d) Because of capacity limitations on the GOES DCS, system
applicants will be admitted to use the GOES system in accordance with
the following priority:
(1) NOAA programs or users whose data are required for
implementation of NOAA programs, as determined by the Assistant
Administrator, will be accorded first priority.
(2) Users whose data are desired to support NOAA programs will be
accorded second priority.
(3) Users whose data and/or use of the GOES DCS will further a
program of an agency or department of the U.S. Government, other than
NOAA, will be accorded third priority.
(4) Users whose data are required by a state or local Government of
the United States will be accorded fourth priority.
(5) Testing users of the system will be accorded fifth priority.
(6) No other usage will be authorized for the GOES DCS.
(e) In the event that Argos DCS capacity limitations require that
priority determinations be made, priority will be given to those
platforms that provide environmental data of broad international
interest, especially of an operational nature, and to those requiring
the unique capabilities of the Argos DCS, such as platform location or
polar coverage.
Sec. 911.5 NOAA Data Collection Systems Use Agreements.
(a)(1) In order to use a NOAA DCS, each user must have an agreement
with the approving authority for that system.
(2) Persons interested in entering into a system use agreement
should contact the Director.
(b) These agreements will address, but may not be limited to, the
following matters:
(1) The period of time the agreement is valid and procedures for
its termination,
(2) The authorized use(s), and its priorities for use,
(3) The extent of the availability of commercial space-based
services which meet the user's requirements and the reasons for
necessitating the use of the Government system,
(4) Any applicable government interest in the data,
(5) Required equipment standards,
(6) Standards of operation,
(7) Conformance with applicable ITU and FCC agreements and
regulations,
(8) Reporting time and frequencies,
(9) Data formats,
(10) Data delivery systems and schedules, and
(11) User-borne costs.
(c) The Director shall evaluate user requests and conclude
agreements for use of the NOAA DCS.
(d)(1) Agreements for the collection, via the Argos DCS, of
environmental data by government agencies or non-profit institutions
shall be valid for 3 years from the date of initial in-situ deployment
of the platforms, and may be renewed for additional 3-year periods.
(2) Agreements for the collection of environmental data, via the
Argos DCS, by non-government users shall be valid for 1 year from the
date of initial in-situ deployment of the platforms, and may be renewed
for additional 1-year periods, but only for so long as there exists a
governmental interest in the receipt of these data.
(3) Agreements for the collection of non-environmental data, via
the Argos DCS, by government agencies, or non-profit institutions where
there is a government interest, shall be valid for 1 year from the date
of initial in-situ deployment of the platforms, and may be renewed for
additional 1-year periods.
(4) Agreements for the episodic collection of non-environmental
data, via the Argos DCS under Sec. 911.4(c)(4), shall be of short,
finite duration not to exceed 1 year without exception, and usually
shall not exceed 6 months. These agreements shall be closely monitored
and shall not be renewed.
(5) Agreements for the testing use of the Argos DCS by equipment
manufacturers shall be valid for 1 year from the date of initial
testing, and may be renewed for additional 1-year periods.
(e)(1) Agreements for the collection of data, by the GOES DCS,
shall be valid for 5 years from the date of initial in-situ deployment,
and may be renewed for additional 5-year periods.
(2) Agreements for the testing use of the GOES DCS, by equipment
manufacturers, shall be valid for 1 year from the date of initial
testing, and may be renewed for additional 1-year periods.
911.6 Treatment of Data.
(a) All NOAA DCS users must agree to permit NOAA and other agencies
of the U.S. Government the full, open and timely use of all data
collected from their platforms; this may include the international
distribution of environmental data under the auspices of the World
Meteorological Organization. Any proprietary data will be protected in
accordance with applicable laws.
Sec. 911.7 Continuation of the NOAA Data Collection Systems.
(a) NOAA expects to continue to operate DCS on its geostationary
and polar-orbiting satellites, subject to the availability of future
appropriations. However, viable commercial space-based alternatives may
eventually
[[Page 24924]]
obviate the need for NOAA to operate its own space-based DCS.
(b) If use of the system in support of NOAA programs increases, it
eventually may be necessary to the further restrict system usage by
other users. If such restrictions on use become necessary, or in the
event that NOAA discontinues operation of GOES and/or POES, NOAA will
provide, to the maximum extent practicable, advance notice and an
orderly transition.
(c) NOAA will not be responsible for any losses resulting from the
nonavailability of the NOAA DCS.
Sec. 911.8 Technical requirements.
(a) All platform operators of the NOAA DCS must use a data
collection platform radio set whose technical and design
characteristics are certified to conform to applicable specifications
and regulations.
(b) All platform operators are responsible for all costs associated
with the procurement and operation of the platforms, and for the
acquisition of data from those platforms, either directly from the
satellite or from the applicable data processing center.
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[[Page 24925]]
Appendix A to Part 911--Argos DCS Use Policy Diagram
[GRAPHIC] [TIFF OMITTED] TR06MY98.000
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Appendix B to Part 911--GOES DCS Use Policy Diagram
[GRAPHIC] [TIFF OMITTED] TR06MY98.001
[[Page 24927]]
[FR Doc. 98-11970 Filed 5-5-98; 8:45 am]
BILLING CODE 3510-12-C
