[Federal Register Volume 70, Number 97 (Friday, May 20, 2005)]
[Proposed Rules]
[Pages 29380-29386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9983]
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Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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15 CFR Part 960
Licensing of Private Land Remote-Sensing Space Systems; Proposed Rule
Federal Register / Vol. 70, No. 97 / Friday, May 20, 2005 / Proposed
Rules
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 960
[Docket No.: 050204028-5028-01]
RIN: 0648-AT00
Licensing of Private Land Remote-Sensing Space Systems
AGENCY: National Oceanic and Atmospheric Administration.
ACTION: Proposed rule.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA)
proposes to amend its regulations governing the licensing of private
Earth remote sensing space systems under Title II of the Land Remote
Sensing Policy Act of 1992, 15 U.S.C. 5621 et seq. (the Act). The
proposed amendments update the regulations to reflect: The new U.S.
Commercial Remote Sensing Policy issued in April 2003, experience
gained since August 2000 with respect to the licensing of commercial
remote sensing space systems, and improvements that take into account
public comments received on the regulations. The proposed amendments
will allow NOAA to more effectively license Earth remote sensing space
systems and help to ensure their compliance with the requirements of
the Act.
DATES: Comments must be received by July 5, 2005.
ADDRESSES: Comments on these proposed changes to the regulations should
be sent to Mr. Douglas Brauer, NOAA/NESDIS International and
Interagency Affairs Office, 1335 East-West Highway, Room 7311, Silver
Spring, Maryland 20910.
FOR FURTHER INFORMATION CONTACT: Mr. Douglas Brauer at (301) 713-2024
x213 or Mr. Glenn Tallia at (301) 713-1221.
SUPPLEMENTARY INFORMATION: Title II of the Land Remote Sensing Policy
Act of 1992 (the Act), 15 U.S.C. 5621 et seq., authorizes the Secretary
of Commerce (the Secretary) to issue licenses for the operation of
private Earth remote sensing space systems. The authority to issue
licenses and to monitor compliance therewith has been delegated from
the Secretary to the Administrator of NOAA (the Administrator) and
redelegated to the Assistant Administrator for Satellite and
Information Services (the Assistant Administrator).
On July 31, 2000, NOAA published in the Federal Register an interim
final rule captioned Licensing of Private Land Remote-Sensing Space
Systems; Interim Final Rule (See 65 FR 46822). These regulations, which
were effective on August 30, 2000, set forth the agency's minimum
requirements for the licensing, monitoring and compliance of operators
of private Earth remote sensing space systems under the Act, 15 CFR
Part 960. The regulations were intended to facilitate the development
of the U.S. commercial remote sensing industry and promote the
collection and widespread availability of Earth remote sensing data,
while preserving essential U.S. national security interests, foreign
policy and international obligations.
Since the publication of the regulations: Two new commercial remote
sensing satellites have been successfully launched and are now
operational; NOAA has issued eight new licenses for increasingly
advanced remote sensing space systems, bringing the total to 21
licenses issued; and, in April 2003, the President announced a new
policy on U.S. commercial remote sensing from space. NOAA is now
proposing amendments to update the regulations to reflect: (1) The new
U.S. policy on commercial remote sensing from space, (2) experience
gained since August 2000 with respect to the licensing of commercial
remote sensing space systems, and (3) improvements that take into
account public comments received on the interim final rule. The
proposed amendments will allow NOAA to more effectively license Earth
remote sensing space systems and help to ensure their compliance with
the requirements of the Act.
Proposed Amendments
1. Purpose
In section 960.1(a), the reference to the President's March 1994
Policy on Foreign Access to Remote Sensing Space Capabilities has been
removed. This policy was rescinded and superseded by the new U.S.
Commercial Remote Sensing Policy issued on April 25, 2003. To avoid the
need to update the regulations in the future to include citations to
specific policies addressing commercial remote sensing, NOAA has
included a more general reference to currently applicable U.S. Policy.
In addition, the list of intended goals in the section has been
modified to reflect the goals of the most current policy.
Section 960.1(b) has been modified to refer to currently applicable
U.S. Policy on remote sensing, as opposed to any specific remote
sensing policy. The addition of ``necessary'' corrects an omission in
the 2000 regulations.
Section 960.1(c) has been added to emphasize the objective of the
new U.S. policy to sustain, enhance and encourage U.S. firms to play a
leadership role in the commercial remote sensing satellite industry.
2. Definitions
In section 960.3, the definition for the term the President's
Policy has been removed. Instead, a more general definition for the
term U.S. Policy has been added which is defined to include policy(ies)
that address U.S. commercial remote sensing space capabilities. Also
added are definitions for the terms Data Protection Plan and Orbital
Debris. Finally, the definition of the term Significant or Substantial
foreign agreement has been modified to improve its clarity.
3. Confidentiality of Information
In section 960.5(a), the list of documents considered to be
business confidential or proprietary information has been expanded to
include foreign agreements and supporting documentation submitted to
NOAA that are explicitly designated and marked as business confidential
or proprietary by the submitter.
In addition, section 960.5(b) has been modified to remove the
requirement that a public summary of the proposed system be submitted
at the same time as the license application. This is in recognition of
the fact that the elements of the proposed system may differ from the
licensed system. Instead, NOAA will require the public summary to be
submitted within 30 days of license issuance. This public summary will
be used by NOAA to provide information to the public concerning a
licensed system. NOAA will no longer require summaries for amendment
requests.
4. Review Procedures for License Applications
NOAA has made minor modifications to section 960.6(a) to make the
wording consistent throughout that section and thereby improve its
clarity. In addition, in sections 960.6(b) and (c), NOAA has increased
the period of time reviewing agencies have to conduct completeness
reviews for license applications from 10 working days to 30 calendar
days. The option to extend the completeness review for an additional 10
working days has been eliminated. In addition, as part of the
subsequent interagency review process, a reviewing agency will be
required to notify NOAA before the expiration of the 30-day review
period if it will be unable to complete its review on time. As is
required by the 2000 regulations, an agency must also
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give a reason for its delay and an estimate of when its review will be
completed. These changes reflect the experience of the interagency
review process over the past four years. The extension of the initial
completeness review period will allow the reviewing agencies additional
time to more thoroughly review license applications and supporting
documentation, which should reduce the number of follow-up questions to
the applicant. These changes, however, will not impact the overall 120-
day statutory review period. In addition, section 960.6(e)(2) has been
modified to include the correct citation to section 960.6(b).
The February 2, 2000, interagency Memorandum of Understanding
Concerning the Licensing of Private Remote Sensing Satellite Systems
(MOU), included as Appendix 2 of the regulations, contains timelines
concerning completeness reviews that differ from what is proposed
above. NOAA, in consultation with the other signatory agencies to the
MOU, has determined not to amend the MOU at this time. In those limited
cases where the timelines contained in the regulations and MOU differ,
the timelines contained in the regulations will govern.
5. Amendments to Licenses
In Section 960.7(a)(4), the citation to Appendix 1 has been
corrected. In addition, consistent with the changes proposed for review
of new applications, in sections 960.7(c), (d), and (e), NOAA has
increased the period of time reviewing agencies have to conduct
completeness reviews on license amendment requests from 10 working days
to 30 calendar days. The option to extend the completeness review for
an additional 10 working days has been eliminated. In addition, as part
of the subsequent interagency review process, a reviewing agency will
be required to notify NOAA before the expiration of the 30-day review
period if it will be unable to complete its review on time. As is
required by the 2000 regulations, an agency must also give a reason for
its delay and an estimate of when its review will be completed. These
changes reflect the experience of the interagency review process over
the past four years. The extension of the initial completeness review
period will allow the reviewing agencies additional time to more
thoroughly review proposed license amendments and supporting
documentation, which should reduce the number of follow-up questions to
the applicant. These changes, however, will not impact the overall 120-
day statutory review period. Finally, NOAA has added a new section
960.7(g) that sets forth the conditions under which the amendment
request review process may be terminated.
6. Notification of Foreign Agreements
NOAA has made a minor editorial change to section 960.8(b) to
remove redundant wording. This change should improve the clarity of
section 960.8(b). NOAA has added a new section 960.8(e) to ensure that
licensees provide to NOAA final documentation of their foreign
agreements in a timely manner.
7. License Term
NOAA has added a new section 960.9(c) to reduce the administrative
burden to the U.S. Government for licensed systems, which will not, in
fact, be developed. This will allow NOAA to devote its time and
resources to licensees whose systems are under actual development, or
in ongoing operations. This section has two phases. In the first phase,
the licensee has five years to conduct preliminary and critical design
reviews for its proposed satellite system. Following the critical
design review, the licensee will have an additional five years to
execute a binding contract for launch services and complete the pre-
ship review of the satellite. If these milestones are not met, the
Assistant Administrator may terminate the license if he/she determines
that sufficient progress is not being made toward the development and
launch of the satellite. Companies that are currently licensed will
have five years from the date of issuance of these regulations to
conduct the preliminary and critical design reviews.
NOAA appreciates the complexity of raising the capital necessary to
develop and launch a remote sensing satellite and will work with the
individual licensee in charting the progress of development. The
proposed milestone approach is consistent with that of other government
agencies, most notably to the Federal Communications Commission for
communications satellite systems. NOAA is interested in receiving
comments on whether the time frames for the milestone approach proposed
herein are suitable, and on alternative approaches to ensure that the
licenses it issues will be acted upon.
8. Conditions for Operation
In sections 960.11(b)(8) and (9), NOAA has clarified the
relationship of the Department of Interior to the National Land Remote
Sensing Archive and the means by which licensees will offer data to the
Archive. NOAA has also corrected language regarding the cost of
fulfilling user requests to match the language in the Act.
NOAA has added a new section 960.11(b)(13). In this section, NOAA
has added a new operational condition requiring the licensee to submit
to NOAA a Data Protection Plan that provides information on how the
licensee will protect data and information from tasking to
dissemination. As NOAA licenses more advanced systems, greater emphasis
has been placed on protection of the data.
NOAA has added a new section 960.11(c), to allow licensees to seek
waivers of particular license conditions. NOAA does not anticipate
granting blanket waivers of conditions; instead it will grant waivers
on a case-by-case basis, for good cause shown, and following
consultations with other agencies.
9. Data Policy for Remote Sensing Space Systems
Sections 960.12(b) and (c)(5) have been modified to correct minor
oversights from the 2000 regulations.
10. Prohibitions
In sections 960.13(f) and (g), NOAA has added the phrase ``in a
timely manner.'' This addition clarifies the importance of the licensee
providing NOAA information while it is still relevant.
11. Enforcement Procedures
NOAA has added new sections 960.15(b) through (g) which set forth
detailed procedures to be followed by NOAA when assessing civil
penalties under the Act. The 2000 regulations, in section 960.15(a),
included a general statement that all civil penalty procedures shall be
in accordance with 15 CFR Part 904. Part 904 sets forth procedures to
be followed by NOAA when assessing civil penalties under other statutes
such as the Magnuson-Stevens Fishery Conservation Act and the Marine
Mammal Protection Act. Upon additional review, it was determined that
not all of the provisions of Part 904 would have application in the
case of NOAA assessing a civil penalty against a NOAA licensee for
violations the Act, regulations or a license. Accordingly, it was
decided that procedures specific to the assessment of civil penalties
against a licensee for such violations should be included.
12. Filing Instructions and Information
Because NOAA will no longer require the public summary at the time
a license application is filed, Appendix 1(c) has been modified to
remove a public
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summary from the list of information that must be submitted with a
license application.
In addition, because numerous companies hold licenses for several
systems, NOAA has modified Appendix 1(d) Sec. III to add the
requirement to name each system. This will allow NOAA to better
identify such systems. Finally, the requirement to submit technical
information has been changed to require the submission of more specific
and detailed technical information.
Classification
A. Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
This proposed rule establishes a more effective process to promote
the development of the remote sensing industry and to minimize any
adverse impact on any entity, large or small, that may seek a license
to operate a private remote sensing space system.
Accordingly, the Chief Counsel for Regulation of the Department of
Commerce certified to the Chief Counsel for Advocacy of the Small
Business Administration that this proposed rule, if adopted, would not
have a significant economic impact on a substantial number of small
entities. Given the extraordinary capitalization required to operate a
commercial remote sensing space system, costs of development and launch
are quite high. Depending on the complexity of a proposed commercial
remote sensing space system, it can cost approximately $250 to $500
million to build, launch and operate such a system. As such, small
entities have yet to enter this field and appear highly unlikely to do
so.
B. Paperwork Reduction Act of 1995 (35 U.S.C. 3500 et seq.)
This proposed rule contains a new collection-of-information
requirement subject to the Paperwork Reduction Act (PRA) that will
modify the existing collection-of-information requirement that was
approved by OMB under control number 0648-0174. This new requirement
has been submitted to OMB for approval. Public reporting burden for
these requirements are estimated to average: 40 hours for the
submission of a license application; 10 hours for the submission of a
data protection plan; 5 hours for the submission of a plan describing
how the licensee will comply with data collection restrictions; 3 hours
for the submission of an operations plan for restricting collection or
dissemination of imagery of Israeli territory; 3 hours for submission
of a data flow diagram; 2 hours for the submission of satellite sub-
systems drawings; 3 hours for the submission of a final imaging system
specifications document; 2 hours for the submission of a public summary
for a licensed system; 2 hours for the submission of a preliminary
design review; 2 hours for the submission of a critical design review;
1 hour for notification of a binding launch services contract; 1 hour
for notification of completion of pre-ship review; 10 hours for the
submission of a license amendment; 2 hours for the submission of a
foreign agreement notification; 2 hours for the submission of
spacecraft operational information submitted when a spacecraft becomes
operational; 2 hours for notification of deviation in orbit or
spacecraft disposition; 2 hours for notification of any operational
deviation; 2 hours for notification of planned purges of information to
the National Satellite Land Remote Sensing Data Archive; 3 hours for
the submission of an operational quarterly report; 8 hours for an
annual compliance audit; 10 hours for an annual operational audit; and
2 hours for notification of the demise of a system or a decision to
discontinue system operations. No estimate is being given to provide
imagery data to the Archive. An estimate will be developed at a later
date.
The public burden for this collection of information includes the
time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Public comment is sought regarding:
Whether this proposed collection of information is necessary for the
proper performance of the functions of the agency, including whether
the information shall have practical utility; the accuracy of the
burden estimate; ways to enhance the quality, utility, and clarity of
the information to be collected; and ways to minimize the burden of the
collection of information, including through the use of automated
collection techniques or other forms of information technology. Send
comments on these or any other aspect of the collection of information
to Mr. Douglas Brauer, NOAA/NESDIS International and Interagency
Affairs Office, at the address noted above and by e-mail to [email protected], or fax to (202) 395-7285.
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.
C. National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Publication of these 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, Regulatory Planning and Review
This rule has been determined to be significant for purposes of
Executive Order 12866.
List of Subjects in 15 CFR Part 960
Administrative practice and procedure, Confidential business
information, Penalties, Reporting and recordkeeping requirements,
Satellites, Scientific equipment.
Dated: May 13, 2005.
Gregory W. Withee,
Assistant Administrator for Satellite and Information Services.
Accordingly, for the reasons set forth above, Part 960 of title 15
of the Code of Federal Regulations is proposed to be amended as
follows:
PART 960--LICENSING OF PRIVATE REMOTE SENSING SYSTEMS
1. The authority citation for part 960 continues to read as
follows:
Authority: 15 U.S.C. 5624.
2. Section 960.1 is revised to read as follows:
Sec. 960.1 Purpose.
(a) The regulations in this part set forth the procedural and
informational requirements for obtaining a license to operate a private
remote sensing space system under Title II of the Land Remote Sensing
Policy Act of 1992 (15 U.S.C. 5621 et seq.) (Pub. L. 102-555, 106 Stat.
4163) and applicable U.S. Policy, which addresses the U.S. commercial
remote sensing satellite industry. (Available from NOAA, National
Environmental Satellite Data and Information Service, 1335 East-West
Highway, Room 7311, Silver Spring, MD 20910). In addition, this part
describes NOAA's regulation of such systems, pursuant to the Act and
applicable U.S. Policy. The regulations in this part are intended to:
(1) Preserve the national security of the United States;
(2) Observe the foreign policies and international obligations of
the United States;
(3) Advance and protect U.S. national security and foreign policy
interests by
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maintaining U.S. leadership in remote sensing space activities, and by
sustaining and enhancing the U.S. remote sensing industry;
(4) Promote the broad use of remote sensing data, their information
products and applications;
(5) Ensure that unenhanced data collected by licensed private
remote sensing space systems concerning the territory of any country
are made available to the government of that country upon its request,
as soon as such data are available and on reasonable commercial terms
and conditions as appropriate;
(6) Ensure that remotely sensed data are widely available for civil
and scientific research, particularly environmental and global change
research; and
(7) Maintain a permanent comprehensive U.S. government archive of
global land remote sensing data for long-term monitoring and study of
the changing global environment.
(b) In accordance with the Act and applicable U.S. Policy,
decisions regarding the issuance of licenses and operational conditions
(See Subpart B of this part) will be made by the Secretary of Commerce
or his/her designee. Determinations of conditions necessary to meet
national security, foreign policy and international obligations are
made by the Secretaries of Defense and State, respectively.
(c) In accordance with U.S. Policy, NOAA encourages U.S. companies
to build and operate commercial remote sensing space systems whose
operational capabilities, products, and services are superior to any
current or planned foreign commercial systems. However, because of the
potential value of its products to an adversary, the U.S. Government
may restrict operations of the commercial systems in order to limit
collection and/or dissemination of certain data and products to the
U.S. Government or to U.S. Government-approved recipients.
3. Section 960.3 is amended by revising the definition for the term
Significant or Substantial foreign agreement, by adding, in
alphabetical order, definitions for the terms Data Protection Plan,
U.S. Policy, and by removing the definition for the term President's
Policy.
Sec. 960.3 Definitions.
* * * * *
Data Protection Plan refers to the licensee's plan to protect data
and information through the entire cycle of tasking, operations,
processing, archiving and dissemination. At a minimum, this includes
protection of communications links and/or delivery methods for tasking
of the satellite, downlinking of data to a ground station (including
relay stations), and delivery of data from the satellite to the
Licensee's central data storage facilities.
Significant or Substantial foreign agreement (also referred to in
this part as foreign agreement or agreement) means an agreement with a
foreign nation, entity, consortium, or person that provides for one of
the following:
(1) Administrative control, which may include distributorship
arrangements involving the routine receipt of high volumes of the
system's unenhanced data;
(2) Participation in the operations of the system, including direct
access to the systems's unenhanced data; or
(3) An equity interest in the licensee held by a foreign nation
and/or person, if such interest equals or exceeds or will equal or
exceed ten (10) percent of total outstanding shares, or entitles the
foreign person to a position on the licensee's Board of Directors.
* * * * *
U.S. Policy means the policy(ies) announced by the President that
specifically address U.S. commercial remote sensing space capabilities.
4. Section 960.5 is revised to read as follows:
Sec. 960.5 Confidentiality of information.
(a) Any proprietary information related to a license application,
application for amendment, foreign agreement, or any other supporting
documentation submitted to NOAA will be treated as business
confidential or proprietary information, if that information is
explicitly designated and marked as such by the submitter. This does
not preclude the United States Government from citing information in
the public domain provided by the licensee in another venue (e.g., a
licensee's website or press release).
(b) Within thirty (30) days of the issuance of a license to operate
a remote sensing space system, the Licensee shall provide the Assistant
Administrator a publicly-releasable summary of the licensed system. The
summary must be submitted in a readily reproducible form accompanied by
a copy on electronic media. This summary shall be available for public
review at a location designated by the Assistant Administrator and
shall include:
(1) The name, mailing address and telephone number of the licensee
and any affiliates or subsidiaries;
(2) A general description of the system, its orbit(s) and the type
of data to be acquired; and
(3) The name and address upon whom service of all documents may be
made.
5. Section 960.6 is amended by revising paragraphs (a), (b), (c)
and (e) to read as follows:
Sec. 960.6 Review procedures for license applications.
(a) The Assistant Administrator shall within three (3) working days
of receipt of an application, forward a copy of the application to the
Department of Defense, the Department of State, the Department of the
Interior, and any other Federal agencies determined to have a
substantial interest in the license application. The Assistant
Administrator shall advise such agencies of the deadline prescribed by
paragraph (b) of this section to require additional information from
the applicant. The Assistant Administrator shall make a determination
on the application, in accordance with the Act and section 960.1(b),
within 120 days of its receipt. If a determination has not been made
within 120 days, the Assistant Administrator shall inform the applicant
of any pending issues and any action required to resolve them.
(b) The reviewing agencies have thirty (30) days from receipt of
application to notify the Assistant Administrator in writing whether
the application omits any of the information listed in Appendix 1 of
this part or whether additional information may be necessary to
complete the application. This notification shall state the specific
reasons why the additional information is being sought. The Assistant
Administrator shall then notify the applicant, in writing, what
information is required to complete the license application. The 120-
day review period prescribed in Section 201(c) of the Act will be
stopped until the Assistant Administrator determines that the license
application is complete.
(c) Within thirty (30) days of receipt of a complete application,
as determined by the Assistant Administrator, each Federal agency
consulted in paragraph (a) of this section shall recommend, in writing,
to the Assistant Administrator approval or disapproval of the
application. If a reviewing agency is unable to complete its review in
thirty (30) days, it is required to notify NOAA prior to the expiration
of the interagency review period, in writing, of the reason for its
delay and provide an estimate of the additional time necessary to
complete the review.
* * * * *
(e) The Assistant Administrator may terminate the license
application review process if:
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(1) The application is withdrawn before the decision approving or
denying it is issued; or
(2) The applicant, after receiving a request for additional
information pursuant to paragraph (b) of this section, does not provide
such information within the time stated in the request.
* * * * *
6. Section 960.7 is amended by revising paragraphs (a)(4), (c),
(d), and (e), and by redesignating existing paragraph (g) as paragraph
(h) and adding a new paragraph (g) to read as follows:
Sec. 960.7 Amendments to licenses.
(a) * * *
(4) deviation from orbital characteristics, performance
specifications, data collection and exploitation capabilities,
operational characteristics identified under Appendix 1 of this part,
or any other change in license parameters.
* * * * *
(c) The Assistant Administrator, shall within three (3) working
days of receipt of a request for amendment, forward a copy of the
request to the Department of Defense, the Department of State, the
Department of the Interior, and any other Federal agencies determined
to have a substantial interest in the amendment request. The Assistant
Administrator shall advise such agencies of the deadline prescribed by
paragraph (d) of this section to require additional information from
the licensee. The Assistant Administrator shall make a determination on
the amendment request, in accordance with the Act and section 960.1(b),
within 120 days of its receipt. If a determination has not been made
within 120 days, the Assistant Administrator shall inform the licensee
of any pending issues and any actions necessary to resolve them.
(d) The reviewing agencies have thirty (30) days from receipt of
the amendment request to notify the Assistant Administrator in writing
whether the request omits any of the information listed in Appendix 1
of this part or whether additional information may be necessary to
complete the request. This notification shall state the specific
reasons why the additional information is being sought. The Assistant
Administrator shall then notify the licensee, in writing, what
information is required to complete the amendment request. The 120-day
review period prescribed in Section 201(c) of the Act will be stopped
until the Assistant Administrator determines that the amendment request
is complete.
(e) Within thirty (30) days of receipt of a complete amendment
application, as determined by the Assistant Administrator, each Federal
agency consulted in paragraph (c) of this section shall recommend, in
writing, to the Assistant Administrator approval or disapproval of the
amendment application. If a reviewing agency is unable to complete its
review in thirty (30) days, it is required to notify NOAA prior to the
expiration of the interagency review period, in writing, of the reason
for its delay and provide an estimate of the additional time necessary
to complete the review.
* * * * *
(g) The Assistant Administrator may terminate the amendment request
review process if:
(1) The amendment request is withdrawn before the decision
approving or denying it is issued; or
(2) The applicant, after receiving a request for additional
information pursuant to paragraph (d) of this section, does not provide
such information within the time stated in the request.
* * * * *
7. Section 960.8 is amended by revising paragraph (b), and
redesignating existing paragraphs (e) and (f) as paragraphs (f) and (g)
and adding new paragraph (e) to read as follows:
Sec. 960.8 Notification of foreign agreements.
* * * * *
(b) The Assistant Administrator, in consultation with other
appropriate agencies, will review the proposed foreign agreement. As
part of this review, the Assistant Administrator will ensure that the
proposed foreign agreement contains the appropriate provisions to
ensure compliance with all requirements concerning national security
interests, foreign policy and international obligations under the Act
or the licensee's ability to comply with the Act, these regulations and
the terms of the license. These requirements include:
(1) The ability to implement, as appropriate, restrictions on the
foreign party's acquisition and dissemination of imagery as imposed by
the license or by the Secretary of Commerce;
(2) The obligations of the licensee to provide access to data for
the National Satellite Land Remote Sensing Data Archive (the Archive);
and
(3) The obligations of the licensee to convey to the foreign party
the reporting and recordkeeping requirements of the license and to
facilitate any monitoring and compliance activities identified in the
license.
* * * * *
(e) The licensee is required to provide NOAA a signed copy of the
foreign agreement within 30 days of its signature.
* * * * *
8. Section 960.9 is amended by adding a new paragraph (c) to read
as follows:
Sec. 960.9 License term.
* * * * *
(c) The licensee shall notify the Assistant Administrator that
specific actions leading to the development and operation of the
licensed remote sensing space system have been completed. If the
Assistant Administrator determines that a licensee has not completed
such actions with respect to a licensed system he/she may terminate the
license. The actions required to be taken and associated timelines are
as follows:
(1) Presentation to NOAA of the following formal review materials
within five (5) years of the license issuance:
(i) Preliminary Design Review, and
(ii) Critical Design Review.
(2) Licensee certification to NOAA of the following milestones
within five (5) years of the Critical Design Review:
(i) Execution of a binding contract for launch services, and
(ii) Completion of the pre-ship review of the remote sensing
payload.
(3) Remote sensing space systems currently licensed by NOAA will
have five (5) years from the date of issuance of these regulations to
meet the milestones in Sec. 960.9(c)(1).
9. Section 960.11 is amended by revising paragraphs (b)(8) and
(b)(9) and adding new paragraphs (b)(13) and (c) to read as follows:
Sec. 960.11 Conditions for operation.
* * * * *
(b) * * *
(8) A licensee shall make available unenhanced data requested by
the Department of the Interior on reasonable cost terms and conditions
as agreed by the licensee and the Department of the Interior. After the
expiration of any exclusive right to sell, or after an agreed amount of
time, the Department of the Interior shall make these data available to
the public at the cost of fulfilling user requests.
(9) Before purging any licensed data in it possession, the licensee
shall offer such data to the Archive at the cost of reproduction and
transmission. The Department of the Interior shall make these data
available immediately to the public at the cost of fulfilling user
requests.
* * * * *
[[Page 29385]]
(13) The licensee shall submit a Data Protection Plan to the
Assistant Administrator for review and approval. The licensee's Data
Protection Plan shall contain the process to protect data and
information throughout the entire cycle of tasking, operations,
processing, archiving and dissemination. If the operating license
restricts the distribution of certain data and imagery to the United
States Government or United States Government-approved customers,
including data whose public distribution is limited for 24 hours after
collection, the Data Protection Plan should also provide for secure
delivery of restricted data and imagery to Government-approved customer
facilities. Communications links that may require protection include,
but are not limited to: Telemetry, tracking and commanding; narrowband
and wideband data, including satellite platform and sensor data,
imagery, and metadata; and terrestrial delivery methods including
electronic and physical package delivery. The licensee's Data
Protection Plan must be approved by NOAA before the licensee's remote
sensing space system may be launched. NOAA encourages the licensee's
early submission and review of the Data Protection Plan to avoid any
negative impacts on its system's development and launch schedule.
(c) The Assistant Administrator may waive any of the conditions in
Sec. 960.11(b) upon a showing of good cause and following
consultations with the appropriate agencies.
Sec. 10. Section 960.12 is amended by revising paragraphs (b) and
(c)(5) to read as follows:
Sec. 960.12 Data policy for remote sensing space systems.
* * * * *
(b) If the U.S. Government has not funded and will not fund, either
directly or indirectly, any of the development, fabrication, launch, or
operations costs of a licensed system, the licensee may provide access
to its unenhanced data in accordance with reasonable commercial terms
and conditions subject to the requirement of providing data to the
government of any sensed state, pursuant to Sec. 960.11(b)(10).
(c) * * *
(5) The extent to which the U.S. interest in promoting widespread
data availability can be satisfied through license conditions that
ensure access to the data for non-commercial scientific, educational,
or other public benefit purposes.
11. Section 960.13 is amended by revising paragraphs (f) and (g) to
read as follows:
Sec. 960.13 Prohibitions.
* * * * *
(f) Fail or refuse to provide to the Secretary or his/her designee
in a timely manner, all reports and/or information required to be
submitted to the Secretary under the Act or the regulations in this
part;
(g) Fail to update in a timely manner, the information required to
be submitted to the Secretary in the license application.
* * * * *
12. Section 960.15 is amended by revising paragraph (a),
redesignating existing paragraph (b) as paragraph (h), and by adding a
new paragraphs (b) through (g) to read as follows:
Sec. 960.15 Penalties and sanctions.
* * * * *
(a) In addition, any person who violates any provision of the Act,
any license issued thereunder, or the regulations in this part may be
assessed a civil penalty by the Secretary of not more than $10,000 for
each violation. Each day of operation in violation constitutes a
separate violation. Civil penalties will be assessed in accordance with
the procedures contained in paragraphs (b) through (g) of this section.
(b) A notice of violation and assessment (NOVA) will be issued by
NOAA and served personally or by registered or certified mail, return
receipt requested, upon the licensee alleged to be subject to a civil
penalty.
(1) The NOVA will contain:
(i) a concise statement of the facts believed to show a violation;
(ii) a specific reference to the provisions of the Act, regulation,
license, agreement, or order allegedly violated;
(iii) the findings and conclusions upon which NOAA based the
assessment;
(iv) the amount of the civil penalty assessed; and
(v) an explanation of the licensee's rights upon receipt of the
NOVA.
(2) In assessing a civil penalty, NOAA will take into account
information available to the Agency concerning any factor to be
considered under the Act and implementing regulations, and any other
information that justice or the purposes of the Act require.
(3) The NOVA may also contain a proposal for compromise or
settlement of the case.
(4) The NOVA may also contain a request for the licensee to cease
and desist operations which are in violation of the Act, regulations,
license, agreement, or order. If the NOVA contains such a request it
will advise the licensee:
(i) Of the amount of time the licensee has to cease and desist the
violation. The amount of time will be decided on a case-by-case basis
at the sole discretion of the Agency.
(ii) If the licensee fails to respond or comply with NOAA's
request, an injunction or other judicial relief may be sought.
(iii) Paragraph (c) of this section applies only to those parts of
the NOVA assessing monetary penalties.
(c) The licensee has 14 days from receipt of the NOVA to respond.
During this time:
(1) The licensee may accept the penalty or compromise penalty, if
any, by taking the actions specified in the NOVA.
(2) The licensee may request a hearing under section 960.10.
(3) The licensee may request an extension of time to respond. NOAA
may grant an extension of up to 14 days unless it is determined that
the requester could, exercising reasonable diligence, respond within
the 14-day period. A telephonic response to the request is considered
an effective response, and will be followed by written confirmation.
(4) The licensee may take no action, in which case the NOVA becomes
final in accordance with paragraph (d) of this section.
(d) If no request for hearing is timely filed as provided in
Sec. 960.10, the NOVA becomes effective as the final administrative
decision and order of NOAA on the 30th day after service of the NOVA or
on the last day of any delay period granted. If a request for hearing
is timely filed in accordance with Sec. 960.10, the date of the final
administrative decision is as provided in that section.
(e) The licensee must make full payment of the civil penalty
assessed within 30 days of the date upon which the assessment becomes
effective as the final administrative decision and order of NOAA under
paragraph (d) of this section or Sec. 960.10.
(1) Payment must be made by mailing or delivering to NOAA at the
address specified in the NOVA a check or money order made payable in
United States currency in the amount of the assessment to the
``Treasurer of the United States,'' or as otherwise directed.
(2) Upon any failure to pay the civil penalty assessed, NOAA may
request the Justice Department to recover the amount assessed in any
appropriate district court of the United States, or may act under
paragraph (f) of this section.
[[Page 29386]]
(f) NOAA, in its sole discretion, may compromise, modify, remit, or
mitigate, with or without conditions, any civil penalty imposed.
(1) The compromise authority of NOAA under this section is in
addition to any similar authority provided in any applicable statute or
regulation, and may be exercised either upon the initiative of NOAA or
in response to a request by the alleged violator or other interested
person. Any such request should be sent to NOAA at the address
specified in the NOVA.
(2) Neither the existence of the compromise authority of NOAA under
this section nor NOAA's exercise thereof at any time changes the date
upon which an assessment is final or payable.
(g) Factors to be taken into consideration when assessing a penalty
may include the nature, circumstances, extent, and gravity of the
alleged violation; the licensee's degree of culpability; any history of
prior offenses; and such other matters as justice may require.
* * * * *
13. Appendix 1 to part 960 is amended by revising paragraphs (c)
and Sec. III of paragraph (d) to read as follows:
Appendix 1 to Part 960--Filing Instructions and Information To Be
Included in the Licensing Application.
* * * * *
(c) Number of copies. One (1) copy of each application must be
submitted in a readily reproducible form accompanied by a copy on
electronic media.
(d) * * *
Sec. III--Space Segment
(1) The name of the system and the number of satellites which
will compose this system;
(2) Technical space system information at the level of detail
typical of a Request for Proposal specification (including sensor
type; spatial and spectral resolution; pointing parameters, etc.);
(3) Anticipated best theoretical resolution (show calculation);
(4) Swath width of each sensor (typically at nadir);
(5) The various fields of view for each sensor (IFOV, in-track,
cross-track);
(6) On-board storage capacity;
(7) Navigation capabilities--GPS, star tracker accuracies;
(8) Time-delayed integration with focal plane;
(9) Oversampling capability;
(10) Image motion parameters--linear motion, drift, aggregation
modes;
(11) Anticipated system lifetime.
* * * * *
[FR Doc. 05-9983 Filed 5-19-05; 8:45 am]
BILLING CODE 3510-HR-P