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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 911

[Docket No. 970725178-7178-01]

Policies and Procedures Regarding Use of the NOAA Space-Based

Data Collection Systems

AGENCY: National Oceanic and Atmospheric Administration, Department of

Commerce.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA)

proposes regulations revising its policies and procedures for

authorizing the use of its space-based Data Collection Systems which

operate on NOAA's Geostationary Operational Environmental Satellites

(GOES) and Polar-orbiting Operational Environmental Satellites (POES).

These proposed regulations revise the current policy on the use of the

GOES Data Collection System (DCS), and formalize a new policy for the

use of the Argos Data Collection and Location System (Argos DCS) which

flies on the POES. The regulations are intended to harmonize, as much

as practicable, the system use policies for the two systems which in

the past have been disparate. The fundamental principle underlying

these regulations is that the Government will not allow its space-based

data collection systems to be used where there are commercial services

available that fulfill users' requirements.

DATES: Comments must be received by November 10, 1997.

ADDRESSES: Comments should be sent to Mr. Dane Clark, NOAA National

Environmental Satellite, Data, and Information Service, Direct Services

Division (E/SP3), 4700 Silver Hill Road, Stop 9909, Room 0158,

Washington, D.C. 20233-9909.

FOR FURTHER INFORMATION CONTACT: Dane Clark at (301) 457-5678, e-mail:

[email protected] or Kira Alvarez at (301) 713-0053, e-mail:

Kira.A[email protected].

SUPPLEMENTARY INFORMATION: NOAA operates environmental data collection

systems on its GOES and on its POES.

The GOES DCS consists of: U.S. Government instruments on NOAA

geostationary satellites; user Data Collection Platforms (DCP); data

receipt and data dissemination systems. With the exception of the DCP,

which are managed by the individual users, the GOES DCS is managed by

NOAA. The

data collection system on the POES is provided through a cooperative

program with the Centre National d'Etudes Spatiales (CNES), the French

national space agency. This system, which is known as the Argos Data

Collection and Location System (Argos DCS), is managed by NOAA and CNES

jointly and consists of: Instruments provided by CNES, which are flown

aboard NOAA polar-orbiting satellites; user platform transmitter

terminals; and global data receipt and data processing centers. Argos

instruments are also scheduled to fly on Japanese and European polar-

orbiting satellites.

Both the GOES DCS and the Argos DCS are operated to support

environmental applications, e.g., meteorology, oceanography, hydrology,

ecology, and remote sensing of Earth resources. In addition, the Argos

DCS currently supports applications related to protection of the

environment, e.g., hazardous material tracking, fishing vessel tracking

for treaty enforcement, animal tracking, and oil and gas pipeline

monitoring to prevent leakage. Presently, the majority of users of

these systems are government agencies and researchers and, in fact,

much of the data collected by both the GOES DCS and the Argos DCS are

provided to the World Meteorological Organization via the Global

Telecommunications System for inclusion in the World Weather Watch

Program.

The GOES DCS was established in 1974 to obtain data from remote

locations which were required for the effective management of programs

by the NOAA. Given that the capacity of this system could more than

provide for all of NOAA's requirements, NOAA, through its regulations,

currently in effect, made the excess capacity of the GOES DCS available

to non-NOAA users (46 F.R. 48634, as amended at 51 F.R. 3465). These

non-NOAA users include Federal and state agencies or local governments,

as well as private persons and firms and foreign government agencies

whose use of the system supports a program of a U.S. agency.

While no similar regulations were published concerning the Argos

DCS, in March 1992, NOAA made a small portion, i.e., less than five

percent of system capacity, available for non-environmental use. This

policy was announced in the Commerce Business Daily on March 2, 1992,

and was consistent with the U.S. Commercial Space Guidelines of 1991

which encouraged government agencies to promote commercial entities'

access to excess U.S. space-based assets in order to facilitate the

growth of the emerging U.S. commercial space industry. This policy of

allowing the non-environmental use of up to five percent of the

system's capacity successfully allowed commercial developers of space-

based data collection systems to access an operational space-based

system to help develop, but not implement, their nascent services.

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 1996

(61 Fed. Reg. 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 data collection systems. To explore these

opportunities, NOAA initiated a dialogue between 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 data collection systems. However, the

government users of the current NOAA-provided systems require a

demonstrated operational capability from the private sector service

providers before contemplating a change away from these government-

provided systems. Based on the presentations, 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 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. 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.

Major Revisions

These proposed regulations would revise the existing regulations to

include the Argos DCS under the regulatory regime that previously only

governed the GOES DCS. To the greatest extent possible, the proposed

regulations would treat the two systems the same. However, due to the

distinct nature of each system and its uses, it was not possible to

harmonize every aspect of system regulation. In particular, the system

priorities are separate and distinct for the two systems. Also, the

authorized users and uses are different. For both systems an important

prerequisite in reviewing applications for use is that there be no

commercial space-based services available which meet the users'

requirements in terms of satellite coverage, accuracy, data throughput,

platform power consumption, size and weight, service continuity and

reliability, platform compatibility and, in the case of government

agencies, cost-effectiveness.

The GOES DCS can only be used for environmental purposes while the

Argos DCS can be used for environmental and some very limited non-

environmental purposes. The non-environmental use of the Argos system

is primarily authorized for government users, for such applications as

humanitarian cargo tracking, or for national security purposes. Non-

governmental use of the Argos system would be curtailed, and a

prerequisite that there be a government interest in the collection of

the data would be added. This prerequisite is similar, but not the

same, as the current GOES sponsorship requirement. In addition to

government users only non-profit users may be allowed to use the Argos

DCS for non-environmental uses, except in cases where there is a

significant possibility of the loss of life. However, at no time will

non-environmental use of the Argos DCS exceed five percent of the

system's total use. This is a reduction from current practice which

allows up to five percent of the system's capacity to be used for non-

environmental data collection. Tying the upper limit for non-

environmental use of the system to a percentage of actual system use

rather than `system capacity' substantially reduces the allowance for

such use of the system. The term of system use agreements would has be

shortened: For use of the GOES system, the term would be reduced from

10 years to 5 years; for use of the Argos System, the term would be

reduced from a maximum of 5 years to a maximum of 3 years. This would

be done to ensure that users will periodically canvass the marketplace

to determine whether commercial services have developed the

capabilities to meet their requirements. The chart in Annex 1 to this

proposed regulation maps out the system use policy for the Argos DCS

and has been included to help users understand these regulations.

Another major revision to the existing regulations is that the

former complicated proprietary information section would be eliminated.

Protection of proprietary information would be in accordance with the

Freedom of Information Act 5 U.S.C. Sec. 552, and the Departmental

procedures for compliance with that statute (see 15 CFR 4). The

existing provisions were promulgated in 1981 when the GOES DCS was

first opened up to private users. At the time, it was anticipated that

these private users might be transmitting proprietary data to which

they would not want their competitors to have access. However, these

procedures were rarely used. NOAA believes that adequate protection for

proprietary information is contained in the Freedom of Information Act.

As a result of revising the GOES DCS regulations to encompass use

of the Argos DCS, a definition section was added for the purpose of

clarity. This section defines most of the relevant terms used in the

regulations, such as government user, non-profit user, platform user,

and government interest.

Classification

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 while at the same time minimizing, as much

as practicable, any adverse impact on any entity, large or small, which

may seek to operate data collection platforms. 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 1980 (44 U.S.C. 35)

This proposed rule contains collection-of-information requirements

subject to review and approval by the Office of Management and Budget

(OMB) under the Paperwork Reduction Act (PRA). The proposed rule

revises collection-of-information requirements that were previously

approved by the OMB under control number 0648-0157. Public reporting

burden for these collections of information is estimated to average 72

hours per response, including 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 shall 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 Dane

Clark, NOAA, National Environmental Satellite, Data, and Information

Service, Direct Services Division (E/SP3), 4700 Silver Hill Road, Stop

9909, Room 0158, Washington, D.C. 20223-9909 and to OMB at the Office

of Information and Regulatory Affairs, Office of Management and Budget,

Washington, D.C. 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 911

Scientific equipment, Space transportation and exploration.

Dated: September 3, 1997.

Robert S. Winokur,

Assistant Administrator.

Accordingly, for the reasons set forth above Part 911 of Title 15

of the Code of Federal Regulations is proposed to be 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--Argus System 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 to use the NOAA Data Collection Systems. In

addition, they establish the criteria NOAA will employ when making

determinations as to whether to authorize the use of its space-based

data collection systems. 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. 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 data

collection systems 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 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) These regulations apply to all existing GOES and Argos DCS

users as well as all future applications for DCS use.

Sec. 911.3 Definitions.

For purposes of this part:

Approving authority means NOAA for the GOES DCS; and it means the

Argos Participating Agencies, via the Argos Operations Committee, for

the Argos DCS.

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 POES (and planned

to fly on-board the ADEOS II Japanese spacecraft and the EUMETSAT METOP

spacecraft); a ground processing system; and telemetry ground stations.

Argos participating agencies are a combination of joint effort

between NOAA; the Centre National d'Etudes Spatiales (CNES) of France;

the National Space Development Agency (NASDA) of Japan; and the

European Organization for the Exploitation of Meteorological Satellites

(EUMETSAT).

Assistant Administrator means the Assistant Administrator for

Satellite and Information Services or his/her designee.

Environmental data means environmental measurement data for the

purpose of using of the GOES DCS; and it means environmental

measurement and environmental protection data for the purpose of using

the Argos DCS.

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.

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.

Episodic use means the use of the system for short events where the

possibility of loss of life is high.

Experimental use means the use of the GOES DCS by equipment

manufacturers for the purposes of testing and assessing new equipment

that is to be used in conjunction with the GOES DCS.

Government interest means relating to the mission of a U.S. Federal

agency or the mission of one of the Argos participating agencies, or

also, in the case of the GOES DCS, a state or local government.

Government user means agencies of Federal, state, or local

governments 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.

NOAA data collection systems means the GOES and Argos space-based

data collection systems.

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.

Operational use means the use of data in a situation where the

utility of the data is 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.

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.

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 data collection systems. Those devices which are used in

conjunction with the GOES DCS are referred to as 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.

User requirement means the requirement expressed and explained in

the System Use Agreement.

Sec. 911.4 Use of the NOAA Data Collection Systems.

(a) Use of the NOAA Data Collection Systems 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) NOAA Data Collection Systems will only be authorized where

there are no commercial services available that meet the user's

requirements.

(c) (1) Except as provided in paragraphs (2), (3) and (4) of this

section, NOAA DCS shall only be used for the collection of

environmental data.

(2) Except as provided in paragraph (c)(3) 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.

(3) Episodic, non-environmental 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.

(4) Experimental use of the GOES DCS is only authorized for

manufacturers of GOES DCS compatible equipment, such as platforms, that

require access to the system in order to test and assess the

compatibility of their new products.

(d) Non-governmental use of the NOAA DCS will only be authorized

where there is a government interest in the collection and/or receipt

of the data.

(e) 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) Experimental users of the system will be accorded fifth

priority.

(6) No other usage will be authorized for the GOES DCS.

(f) 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) In order to use a NOAA DCS, each user must have an agreement

with the approving authority for that system.

(b) These agreements will address, but will 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 services which

meet the user's requirements and the reasons for choosing 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, Office of Satellite Data Processing and

Distribution for the National Environmental Satellite, Data, and

Information Service shall evaluate user requests and conclude

agreements for use of the NOAA Data Collection systems.

(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.

(2) Agreements for the collection of environmental data via the

Argos DCS by for-profit users shall be valid for 1 year from the date

of initial in-situ deployment of the platforms, and may be renewed

annually thereafter 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 nonprofit institutions shall be

valid for 1 year from the date of initial in-situ deployment of the

platforms and may be renewed annually.

(4) Agreements for episodic collection of non-environmental data

via the Argos DCS under 911.4(c)(3) 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.

(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.

(2) Agreements for the experimental use of the GOES DCS by

equipment manufacturers shall be valid for 2 years from the date of

initial in-situ deployment, and may be renewed.

Sec. 911.6 Treatment of Data.

(a) All NOAA DCS users must agree to permit NOAA and other agencies

of the U.S. Government the full, open and timely use of all data

collected from their platforms. 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 satellite-based data

collection systems on its geostationary and polar-orbiting satellites,

subject to the availability of future appropriations.

(b) As use of the system in support of NOAA programs increases, it

eventually may be necessary to 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 to the

affected users.

(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 conform to applicable specifications and regulations.

(b) All platform operators are responsible for all costs associated

with the procurement and operation of the platforms, and for the

acquisition of data from those platforms either directly from the

satellite or from the applicable data processing center.

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Appendix A to Part 911--Argos System Use Policy Diagram

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[FR Doc. 97-23727 Filed 9-8-97; 8:45 am]

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