[Federal Register: May 6, 1998 (Volume 63, Number 87)]
[Rules and Regulations]
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.
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 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, 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:
Richard Antoine at 301-816-4521, e-mail: Richard.Antoine@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.
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 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:
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:
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.
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
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
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.
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
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
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.
Sec. 911.3 Definitions.
For purposes of this part:
Sec. 811.4 Use of the NOAA Data Collection Systems.
Sec. 911.5 NOAA Data Collection Systems Use Agreements.
911.6 Treatment of Data.
Sec. 911.7 Continuation of the NOAA Data Collection Systems.
Sec. 911.8 Technical requirements.
BILLING CODE 3510-12-M
Appendix A to Part 911--Argos DCS Use Policy Diagram
Appendix B to Part 911--GOES DCS Use Policy Diagram
[FR Doc. 98-11970 Filed 5-5-98; 8:45 am]
BILLING CODE 3510-12-C
Link to Federal Register version, Acrobat (PDF) file format. Use Issue Date "05/06/98" and Search Terms "15 CFR Part 911"
Revised: 6 May 1998