Licensing of Private Remote Sensing Space Systems, 21282-21300 [2019-09320]

Download as PDF 21282 Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules (h) Alternative Methods of Compliance (AMOCs) (1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (i)(1) of this AD. Information may be emailed to: 9ANM-Seattle-ACO-AMOC-Requests@faa.gov. (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/ certificate holding district office. (3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD. (i) Related Information (1) For more information about this AD, contact Christopher Baker, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206–231– 3552; email: christopher.r.baker@faa.gov. (2) For service information identified in this AD, contact Aviation Partners Boeing, 2811 S 102nd Street, Suite 200, Seattle, WA 98168; telephone 206–830–7699; internet https://www.aviationpartnersboeing.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206–231–3195. Issued in Des Moines, Washington, on May 3, 2019. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service. [FR Doc. 2019–09866 Filed 5–13–19; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF COMMERCE khammond on DSKBBV9HB2PROD with PROPOSALS National Oceanic and Atmospheric Administration [Docket No.: 100903432–9396–01] RIN 0648–BA15 Licensing of Private Remote Sensing Space Systems National Environmental Satellite, Data, and Information Service VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 The Department of Commerce (Commerce), through the National Oceanic and Atmospheric Administration (NOAA), licenses the operation of private remote sensing space systems under the Land Remote Sensing Policy Act of 1992. NOAA’s existing regulations implementing the Act were last updated in 2006. Commerce is now proposing to rewrite those regulations, as described in detail below, to reflect significant changes in the space-based remote sensing industry since that time and to improve the regulatory approach overall. Commerce requests public comment on the new proposed regulations. DATES: Comments must be received by July 15, 2019. ADDRESSES: You may send comments by the following methods: Federal eRulemaking Portal: Go to: www.regulations.gov and search for the docket number NOAA–NESDIS–2018– 0058. Click the ‘‘Comment Now!’’ icon, complete the required fields, and enter or attach your comments. Mail: NOAA Commercial Remote Sensing Regulatory Affairs, 1335 EastWest Highway, G101, Silver Spring, Maryland 20910. Instructions: The Department of Commerce and NOAA are not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. All submissions received must include the agency name and docket number or RIN for this rulemaking. All comments received will be posted without change to www.regulations.gov, including any personal or commercially proprietary information provided. FOR FURTHER INFORMATION CONTACT: Tahara Dawkins, Commercial Remote Sensing Regulatory Affairs, at 301–713– 3385, or Glenn Tallia, NOAA Office of General Counsel, at 301–628–1622. SUPPLEMENTARY INFORMATION: SUMMARY: Background 15 CFR Part 960 AGENCY: (NESDIS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (Commerce). ACTION: Proposed rule. Pursuant to Article VI of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty), activities of private U.S. entities in outer space require the ‘‘authorization and continuing supervision’’ of the United States Government. The Land Remote Sensing Policy Act of 1992, codified at 51 U.S.C. PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 60101 et seq. (Act), authorizes the Secretary of Commerce (Secretary) to fulfill this responsibility for operators of private remote sensing space systems, by authorizing the Secretary to issue and enforce licenses for the operation of such systems. The Secretary’s authority under the Act is currently delegated to the NOAA Assistant Administrator for Satellite and Information Services. Under its regulations implementing the Act, found at 15 CFR part 960, NOAA has issued licenses for over 1,000 imaging satellites, helping to ensure that the United States remains the clear world leader in this industry. Through the National Space Council, an interagency organization established by the President of the United States, chaired by the Vice President, and tasked with developing and monitoring the implementation of national space policy and strategy, this Administration has made clear that long-term U.S. interests are best served by ensuring that U.S. industry continues to lead the rapidly maturing and highly competitive private remote sensing space market. The Administration’s goal is to advance and protect U.S. national security and foreign policy interests by maintaining the nation’s leadership in remote sensing space activities, and by sustaining and enhancing the private U.S. remote sensing space industry. In short, the Administration aims to ensure that the United States remains the world leader in this strategic industry. To that end, and in accordance with Space Policy Directive-2, Commerce began the process of reviewing its private remote sensing space system regulations by publishing an Advance Notice of Proposed Rulemaking (ANPRM) on June 29, 2018 (83 FR 30592). The ANPRM sought public comment on a variety of questions across five topics related to the Act, and Commerce received nine detailed responses. Commerce thanks all commenters for their thoughtful responses to its ANPRM. Commerce incorporated many principles and specific ideas from these comments into this proposed rule. Based on the wide scope of this undertaking and substantive changes desired by the Administration and suggested by the public, Commerce is proposing to entirely rewrite the current regulations. Commerce started from a blank slate, then incorporated public input from the ANPRM and the results of several months’ worth of interagency discussions. As described in detail below, this proposed rule implements the Administration’s and the public’s shared goals of increasing transparency, certainty, and reducing regulatory E:\FR\FM\14MYP1.SGM 14MYP1 khammond on DSKBBV9HB2PROD with PROPOSALS Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules burdens without impairing essential governmental interests, such as preserving U.S. national security and adhering to international obligations. The most fundamental changes Commerce proposes to meet these goals are, first, to create a two-category framework, where the license terms are commensurate with the risk posed by the remote sensing space system to the national security and international obligations of the United States, and, second, to conduct a full interagency review and consider custom license conditions only when a proposed system is novel and is in the higher risk category. Commerce believes this approach will be more efficient, more transparent, and less burdensome, and will provide more certainty to the remote sensing community, compared with the status quo. Commerce invites public comment and requests suggestions for additional improvements to the rule in general. Of particular note, Commerce seeks feedback on the proposed rule’s criteria used to distinguish between low- and high-risk systems, and the standard license conditions proposed for lowand high-risk systems, respectively (including cost of complying with such conditions and suggested alternative approaches). eliminating the uncertainty, additional review time, and regulatory burden imposed by individualized interagency review for all non-novel applications; • Requires the periodic update of the low-risk category criteria, standard license conditions, and interagency review processes via public notice-andcomment rulemaking, thereby increasing transparency and regulatory certainty; • Reduces the application review time to 60 days for low-risk systems and 90 days for high-risk systems, and eliminates the current practice of ‘‘clock stoppages’’ for review of applications; and • Reduces compliance burdens in several ways, such as: Æ Reducing the number and complexity of license conditions, including eliminating the requirement to offer unenhanced data to the U.S. Government before deleting (purging) data; Æ Significantly lessens paperwork burdens by reducing the information requested in the application and replacing audits with certifications; and Æ Incorporating all operating requirements into a single license document. General Overview Comments received in response to the ANPRM favored a less burdensome regulatory approach; categorizing systems and conditioning their operations proportionately, based on the risks they pose to U.S. national security and international obligations; and increasing transparency in the regulatory process, such as through notice-and-comment rulemaking. The proposed rule makes several changes based on specific concepts supported by the public comments to the ANPRM, including the following: • Updates and clarifies the definition of ‘‘remote sensing,’’ with the result that many cameras used today in space for technical purposes will not require a license; • Establishes a review process and license conditions based on potential risk, separating ‘‘high-risk’’ systems from ‘‘low-risk’’ systems, with the result that, based on a review of past applications, approximately 40 percent of future systems would likely be considered ‘‘low-risk’’; • Incorporates only those conditions specified in the rule in all licenses except for proposed systems that are novel and pose a high risk, estimated, based on a review of past applications, at under 20 percent of systems, thereby Subpart A: General VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 Subpart-by-Subpart Overview This subpart addresses the scope and applicability of the proposed rule, Commerce’s jurisdiction, and definitions. First, the scope of the Act and, therefore, the proposed rule, do not include systems owned or operated by U.S. Government agencies. The rule, therefore, has no bearing on U.S. Government remote sensing capabilities or the data policy regarding the availability of data or products therefrom, such as Landsat and NOAA’s operational satellites. The proposed rule regulates private remote sensing space systems operated by all other entities, which may be commercial, non-profit, academic, or otherwise. If such entities are United States citizens, as defined in the proposed rule, or foreign entities that would operate a private remote sensing space system from the United States, they would fall within the Secretary’s jurisdiction and require a license. Second, the proposed rule’s definition of ‘‘remote sensing space system’’ includes missions to conduct remote sensing from an orbit of any celestial body. When the current regulations were last updated, Commerce did not foresee that private entities would pursue remote sensing missions beyond PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 21283 Earth’s orbit; therefore, the current regulations limit their jurisdiction to systems in Earth orbit and those capable of sensing the Earth. However, as discussed below, the Act is not limited to Earth-focused missions. This revised definition better reflects the Act’s scope and provides clarity for operators of remote sensing missions not in Earth orbit that were previously unable to identify a U.S. Government agency that was able to clearly and directly authorize their proposed mission. Commerce seeks public comment on this statutory interpretation. Commerce received several comments questioning the statutory authority and policy rationale for regulating non-Earth imaging, especially where the operator has no intent to image the Earth. Commerce believes that the plain language of the Act requires a broader scope than simply intentional Earth imaging. In the Act (at 51 U.S.C. 60101(4)), Congress defined ‘‘land remote sensing’’ as the collection of imagery of the Earth’s surface. However, when Congress created the authority for Commerce to issue licenses, it did not limit this authority to ‘‘land’’ remote sensing. Instead, it provided Commerce with a broader authority over all ‘‘private remote sensing space systems.’’ 51 U.S.C. 60121(a)(1). The Act’s legislative history reveals this to have been an intentional wording choice. By avoiding the word ‘‘land,’’ which Congress used elsewhere in the Act, Congress made clear that Commerce’s responsibility to regulate remote sensing was not limited to intentional Earth imaging. Third, Commerce calls attention to the proposed rule’s definition of ‘‘remote sensing.’’ As drafted, the definition requires ‘‘transmission’’ of data that is collected in space, so instruments that collect data in space but never transmit the data (for example, traditional star trackers) would not meet the definition of ‘‘remote sensing’’ and would not need a license. However, Commerce cannot exempt systems with poor imaging resolution from the licensing requirement, as at least one commenter requested. The Act requires all operators of remote sensing space systems to obtain a license before operating, and the Act does not provide the authority for Commerce to exempt any system that performs ‘‘remote sensing’’ from the license requirement. The definition of ‘‘remote sensing’’ also addresses a point raised by several commenters, who requested that Commerce either exempt cameras on launch vehicles from the licensing requirement, or create a special streamlined licensing category for them. E:\FR\FM\14MYP1.SGM 14MYP1 khammond on DSKBBV9HB2PROD with PROPOSALS 21284 Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules In the proposed rule, the definition of ‘‘remote sensing’’ excludes data from an instrument that is physically attached to the primary object being sensed, because this sensing is not ‘‘remote.’’ This updated definition has the result of excluding many cameras used today in space for technical purposes, including cameras attached to second-stage launch vehicles, where the camera primarily images the launch vehicle itself; and cameras primarily viewing a solar array deploying on a spacecraft. Therefore, any cameras falling under the exclusion in the revised definition would not need a license. Fourth, the ANPRM asked how Commerce should decide which entity or entities must obtain a license if many entities are involved in a single system. All commenters that responded on this point requested that Commerce license only the one entity with the greatest control over the remote sensing operations of the system. Commerce agrees with this suggestion, and has implemented it by clarifying the definition of ‘‘operate.’’ Therefore, under the proposed rule, a single entity will be legally responsible for ensuring the compliance of the entire system. Commerce notes that the system, as defined, includes all space- and groundbased components that support remote sensing and data management, regardless of whether the licensee owns or manages it. For example, if Company A owns and controls a remote sensing instrument that is physically hosted on Company B’s spacecraft, it is likely that Company A is the correct party to apply for a license, and would be responsible for ensuring compliance with all license terms, even if they affect or rely on activities conducted by Company B. Finally, some commenters suggested Commerce create a form of a general license for identical or similar systems. Commerce notes that the definition of ‘‘remote sensing space system’’ in the proposed rule makes clear that a license may authorize a system comprising one or more remote sensing instruments and spacecraft. By not limiting how many remote sensing instruments qualify as a system, the proposed rule permits an applicant to apply for a single license to operate a series or constellation of remote sensing instruments. So long as the characteristics and capabilities of the entire system are fully and accurately described in the application, a system comprising multiple instruments could potentially receive a single license. VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 Subpart B: Risk Categories and General Interagency Consultation Processes This subpart addresses how Commerce will periodically consult with the other U.S. Government agencies with roles specified in the Act: The Departments of Defense and State. It also reflects one of the major changes in the proposed rule: The distinction between low- and high-risk systems. In the ANPRM, Commerce suggested the possibility of identifying applications posing a ‘‘de minimis’’ risk. All commenters reacted positively to this idea. After deliberation, Commerce opted to attempt to expand this category by including systems deemed to be lowrisk, rather than the more conservative ‘‘de minimis’’ risk. Commerce hoped this would allow far more applicants into this streamlined and less burdensome category, which will receive the license conditions specified in Subpart D, rather than the more expansive conditions in Subpart E. Similarly, a few commenters suggested implementing a system akin to a ‘‘general license’’ or notification-based authorization to operate a ‘‘de minimis’’ risk system. The proposed rule, instead, streamlines the individual application and licensing processes for low-risk systems, which Commerce believes will benefit far more operators and will achieve the same policy goals as the commenters’ proposals. Regarding the risk category criteria, Commerce sought to draft the categorization criteria to ensure that a substantial portion of licensees would be subject to the low-risk conditions. Under the criteria in the proposed rule, Commerce estimates that approximately 40 percent of existing licensees (primarily educational institutions) would have been categorized as lowrisk. Generally, systems that meet all criteria in this subpart will be categorized as low-risk, although the Secretary may categorize as low-risk some systems that meet less than all of the low-risk criteria after consultation with the Secretaries of Defense and State. Additionally, the Secretary may categorize as high-risk a system that meets all the low-risk criteria, but which poses a high and unforeseeable risk because it is novel in some way. Publishing the categorization criteria in the rule provides potential applicants with greater insight into what category they are likely to be assigned—and, therefore, what processes and license conditions they may be subject to. Commerce seeks public comment on the criteria in section 960.6. Commerce requests feedback about whether these PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 criteria (as they interact with the corresponding standard license conditions in Subparts D and E) appropriately take into account the Administration’s goals, including the policy factors in 960.5. Commerce also specifically seeks comment on whether the terms used in the criteria factors reflect the remote sensing industry’s own technical parameters, such that the criteria can be clearly understood. For example, the criteria include whether a system is capable of imaging a center point more than once in 24 hours; Commerce welcomes comments on whether the remote sensing industry has a different, commonly used method to calculate revisit rate. Additionally, Commerce seeks comment on the thresholds adopted in the criteria. For example, with respect to resolution thresholds, the Administration opted to use the capabilities of the public Landsat system as a floor for the systems that would be deemed low-risk; that is to say, a system is necessarily low-risk if it is no more capable than Landsat. As a result, the thresholds for imaging resolution for low-risk systems are set at 15 meters panchromatic and 30 meters multispectral, respectively. Commerce seeks comment on these and other thresholds. Commenters variously suggested updating these criteria every one to five years, depending on whether the commenters emphasized the need for adaptability or certainty. To balance these interests, Commerce proposes to review the criteria at least every two years. If Commerce believes changes are warranted, it will promulgate updates to the criteria through notice-and-comment rulemaking to ensure it is transparent and informed. Subpart B also provides a process for reviewing and updating standard license conditions at least every two years. This process mirrors the one discussed above for updating categorization criteria, and will likewise promote transparency, certainty, public input, and adaptability. Additionally, in all places in the proposed rule that include interagency consultation, the U.S. Government would be required to use the dispute resolution procedures in the 2017 Interagency Memorandum of Understanding (MOU). However, the definition of the MOU in the proposed rule makes clear that wherever the MOU (which implemented the existing regulations) conflicts with the proposed rule, the proposed rule will govern. Of particular note, Section IV(A) of the MOU conflicts in large part with the proposed rule’s interagency consultation process for the review of E:\FR\FM\14MYP1.SGM 14MYP1 Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS applications and inclusion of license conditions described in subparts C, D, and E of the proposed rule; therefore, subparts C, D, and E of the proposed rule will govern. Furthermore, Section IV(B) refers to interagency dispute resolution for licensing actions, but the proposed rule uses the committees created in Section IV(B)(1) and escalation procedures in Section IV(B)(2) for resolving disputes about matters besides individual licensing actions. Therefore, when the proposed rule refers to ‘‘interagency dispute resolution procedures in Section IV(B) of the MOU,’’ the U.S. Government will treat the text of Section IV(B) as though it referred to adjudicating any disputes. Commerce anticipates that the MOU will help ensure that the procedures in the proposed rule work smoothly and quickly. Subpart C: License Application Submission and Categorization This subpart informs applicants of the review procedures that Commerce will follow in accepting and beginning review of all applications, including the process by which Commerce will categorize an application as low- or high-risk based on the criteria specified in Subpart B. It provides timelines for internal government procedures and for notifying applicants of their category. One of the primary benefits to industry from the proposed rule is in curtailing the interagency application review process. Under the existing regulations, every applicant receives the same interagency review, with the potential for specialized license conditions of which the applicant had no prior notice. This interagency review process has sometimes resulted in prolonged delays to license issuance, and has imposed license conditions that the applicant could not have anticipated when developing their system. Under the proposed rule, Commerce expects that the majority of applications would not be subjected to that individualized interagency review. Whether they are categorized as low- or high-risk, most applications would be subject only to a determination of whether the application is complete, its appropriate category, and whether the applicant will comply with the law. Only those applications that are novel (such that the standard license conditions do not adequately address their risks) will be subjected to openended interagency review and the possibility of specialized license conditions. Based on a review of four years of applications, Commerce estimates that over 80 percent of such applications would not have received VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 individualized review or specialized license conditions under the proposed rule. In summary, the proposed rule provides significantly expedited review and greater certainty for the majority of applications, whether categorized as low- or high-risk. Subpart D: Low-Risk Category This subpart exclusively addresses low-risk applications and licenses. It contains procedures for completing review of applications categorized as low-risk and for granting or denying those licenses. It also contains every condition that will be included in each low-risk license, and clarifies which conditions may be waived and how. A key innovation of the proposed rule, requested by several commenters, is that applicants that are informed that their systems will be categorized as lowrisk will know with certainty what their license conditions will be: Applications categorized as low-risk are never subject to individual interagency review, can never include specific conditions, and Commerce cannot require a modification once a license is granted (colloquially, if imprecisely, known as permanent ‘‘retroactive conditions’’). Moreover, these standard license conditions are less burdensome than those typically included in licenses under the existing regulations. For example, low-risk licensees will not be required to encrypt data in transmission or at rest, nor must they be able to comply with limited operations orders (colloquially known as temporary ‘‘shutter control’’). The standard license conditions, for both low- and high-risk categories, are split into two subsections: Those that are eligible to be waived and those that are not. The rule specifies that Commerce will consider waiving a condition for good cause, including when the condition is inapplicable, or when the licensee can achieve the condition’s goal another way. Most conditions that are not eligible to be waived are specifically required either by the Act or by Section 1064, Public Law 104–201, (the 1997 Defense Authorization Act), referred to as the ‘‘Kyl-Bingaman Amendment.’’ One notable condition relates to data protection. Commerce’s current regulations do not specify a clear data protection standard, instead requiring all licensees to develop, submit, obtain approval of, and follow, a ‘‘data protection plan.’’ The proposed rule provides greater certainty to applicants as to what data protection measures will be sufficient, while still retaining flexibility where appropriate. Regarding encryption, the standard license PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 21285 conditions in the proposed rule require low-risk licensees to choose a National Institute of Standards and Technology (NIST)-approved encryption method to encrypt telemetry, tracking, and control (TT&C) only (see discussion of high-risk data protection conditions below in the Subpart E summary). The rule requires the licensee to implement additional measures, consistent with industry best practice, to prevent unauthorized system access. However, the ‘‘data protection plan’’ is no longer required. Therefore, applicants will know in advance what encryption methods will be acceptable, and will not be required to develop or receive approval of a data protection plan. However, as with all waivable conditions, the applicant may request a waiver and propose an alternative means of protection. Commerce believes this strikes an appropriate balance between providing certainty and allowing flexibility. Commerce seeks feedback on this approach to data protection, and on the proposed requirement to implement NIST-approved encryption. Turning to Commerce’s duty to implement the Kyl-Bingaman Amendment, the NPRM proposes a standard license condition consistent with the Kyl-Bingaman Amendment’s prohibition against issuing a license that permits imagery of Israel that is ‘‘more detailed or precise than . . . is available from commercial sources.’’ Commerce, interpreting this language, reasoned that imagery is ‘‘available from commercial sources’’ when imagery at a certain resolution is ‘‘readily and consistently available in sufficient quantities from non-U.S. sources’’ to render more stringent resolution restrictions on U.S. licensees ineffective (April 25, 2006, 71 FR 24473). Commerce modeled this interpretation on export control regulations issued by Commerce’s Bureau of Industry and Security, which address an analogous concern. Applying this standard, Commerce has most recently found that imagery of Israel is readily and consistently available at a two-meter resolution (October 15, 2018, 83 FR 51929). Commerce proposes to reevaluate the resolution determination every two years as a part of the routine review of standard license conditions described in Subpart B. Commerce seeks comment on the interpretation of the statute at 71 FR 24479, and on whether the spatial resolution Commerce identifies in the relevant standard conditions below is consistent with that interpretation (April 25, 2006, 71 FR 24473). All commenters favored a presumption of approval for all applications. Commerce agrees. This E:\FR\FM\14MYP1.SGM 14MYP1 khammond on DSKBBV9HB2PROD with PROPOSALS 21286 Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules subpart implements a presumption of approval for low-risk applications, meaning that Commerce must grant the license application unless the Secretary has specific, credible evidence that the applicant will not comply with applicable legal requirements. This subpart also halves the time the Act allows for Commerce to review a lowrisk application from 120 days to 60 days, as requested by a few commenters, and reduces the review period for a high-risk application to 90 days. For all licensees, the proposed rule dramatically decreases paperwork and compliance burdens. The existing regulatory program requires the completion of lengthy baseline, quarterly, and annual audits, and prelaunch documentation, among other requirements. By contrast, the proposed rule replaces such requirements for lowrisk systems with a single annual certification, as requested by several commenters. This certification merely requires the licensee to verify that all facts contained in the license are still true. The ANPRM requested comments about whether Commerce should impose any insurance requirements to address potential liability to the United States Government, and to mitigate the risk of orbital debris. All commenters that responded on this point argued against imposing such a requirement. In lieu of imposing insurance requirements, Commerce is proposing a standard license condition (shown in Subparts D and E) requiring licensees to comply with the latest version of the Orbital Debris Mitigation Standard Practices (ODMSP) issued by the U.S. Government, as contemplated by Space Policy Directive-3, section 6(b)(ii). Commerce anticipates that this requirement will reduce the risk of onorbit collisions and preserve the space environment for all users, while imposing minimal additional burdens on industry. Commenters also requested greater clarity about license amendments and foreign agreements. Whereas the existing regulatory approach to these topics can require duplicative paperwork and review processes, such as requesting review of a proposed foreign agreement and license amendment for the same transaction, the proposed rule greatly simplifies the license amendment process and combines it with the foreign agreement process. It replaces both of these with a single ‘‘modification,’’ required only when a material fact listed in the license changes. For example, if the license specifies that there are no foreign ground stations, then a licensee would VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 need to obtain approval of a modification before adding a foreign ground station. Commerce would review the terms of the foreign agreement as part of its analysis about whether to grant the modification request, but the licensee would not need to obtain separate approval of the foreign agreement. Subpart E: High-Risk Category This subpart exclusively addresses high-risk applications and licenses. It contains procedures for completing review of applications categorized as high-risk and for granting or denying those licenses. Many of these processes are identical to or comparable to those included in Subpart D for low-risk applications and licenses, but the proposed rule separates them to assist applicants and licensees in understanding what terms apply to them. There are two types of conditions contemplated in high-risk licenses: Standard conditions (which are included in all licenses and published in the rule), and specific conditions, which are generated on a case-by-case basis, if necessary (because the system is determined to be novel, as described in Subpart C), through consultation with other U.S. Government agencies. In the course of such interagency consultation, the rule commits Commerce to determine, in consultation with the Secretaries of Defense and State, whether proposed specific license conditions may be reasonably mitigated by U.S. Government action, and to follow the MOU escalation procedures in the event of any disagreements. It also enables Commerce to involve the applicant during the licensing process and consult regarding any proposed specific conditions, suggested by some commenters as a way to find creative, less-burdensome conditions that still address interagency concerns. These procedures are intended to create procedural safeguards against unduly burdensome conditions. One important standard high-risk condition addresses data protection. As discussed previously, the existing regulations do not specify data protection criteria, instead requiring the licensee to develop, submit, obtain approval of, and then follow a data protection plan. By contrast, the proposed rule specifies data protection criteria to increase clarity: The standard license conditions in the proposed rule require high-risk licensees to choose a NIST-approved and validated encryption method with a key length of at least 256 bits for encrypting TT&C and all data transmissions, and to PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 implement additional measures, consistent with industry best practice, to prevent unauthorized system access. Recognizing the increased risk posed by the data from high-risk systems, the proposed rule requires that high-risk licensees also maintain a document that describes the means by which the licensee will comply with the license’s data protection conditions. The proposed rule would require high-risk licensees to use the latest version of NIST’s Cybersecurity Framework in developing this document; Commerce seeks comment on this proposal and whether any alternatives are preferable. The licensee is not required to submit the document to Commerce, although Commerce may request it and may use it to assist in inspections. High-risk applications, like low-risk applications described above, also benefit from the presumption of approval favored by all commenters. This means that Commerce generally must grant these licenses within the 90day review timeline unless there is specific, credible evidence that the applicant will not comply with applicable legal requirements. The proposed rule eliminates ‘‘clock stoppages’’ and thereby increases transparency about the timeline. As is true for low-risk licenses, the proposed rule combines ‘‘license amendments’’ and ‘‘foreign agreements’’ into a single ‘‘license modification’’ process, which is the same for high-risk licenses as for low-risk licenses as described above in the overview of Subpart D. Unlike for low-risk licenses, the proposed rule permits Commerce to require license modifications after license issuance to high-risk systems that could require technical modifications to the system for national security reasons as determined by the Secretary of Defense. However, the proposed rule includes the Act’s procedure which provides that Commerce may require the U.S. Government to reimburse affected licensees for additional costs associated with such technical modifications. Finally, the proposed rule dramatically reduces paperwork for high-risk licenses. Almost all compliance documents, such as routine audits, are replaced by a semi-annual certification. Subpart F: Prohibitions and Enforcement This subpart reduces the number of possible violations compared with the existing regulations. It also simplifies the regulatory language regarding the Secretary’s authorities to investigate, E:\FR\FM\14MYP1.SGM 14MYP1 Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules penalize, and prevent violations of the law, often by referring directly to the statutory authorities. Subpart G: Appeals This subpart clarifies the actions subject to administrative and judicial appeal, and the appeal procedures. Appendices For transparency and certainty, the following are included as Appendices to the proposed rule: (1) Information required in an application, (2) application submission instructions, (3) information to be included in a license, and (4) the 2017 Interagency MOU. Because license modifications are required prior to taking any action that would result in the information included in the license becoming inaccurate, it is important to note what information Commerce proposes to include in the license (Appendix C). khammond on DSKBBV9HB2PROD with PROPOSALS Classification Commerce seeks public comment on the below regulatory analyses, including the analysis of entities affected, estimated burdens to industry, and anticipated benefits to society. Commerce welcomes public input on the monetary and non-monetary burdens imposed under the existing regulations, as well as those estimated under the proposed rule. Commerce also welcomes information on regulatory alternatives consistent with the Act that better address the goals of this Administration and of the statutes and Executive Orders described below. Regulatory Planning and Review— Executive Orders 12866 and 13563 E.O. 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is significant for purposes of E.O. 12866. E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 exchange of ideas. Commerce has developed this rule in a manner consistent with these requirements. This proposed rule is consistent with E.O. 13563, and in particular with the requirement of retrospective analysis of existing rules, designed ‘‘to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives,’’ for the reasons given below. In addition, its requirement to make standard conditions to be included in licenses issued under the regulations subject to notice and comment rulemaking will greatly enhance transparency, predictability and certainty for potential market entrants. Commerce believes that there is substantial information demonstrating the need for and consequences of the proposed action because it has engaged with the industry and the public in recent years, including through NOAA’s Advisory Committee on Commercial Remote Sensing (ACCRES), to study changes in the industry. Through direct contact with the remote sensing space industry, ACCRES, and other fora, Commerce is well informed about the growth in the industry and the challenges imposed by the existing regulations. Commerce also seeks public input on this proposed rule to obtain even more information about the need for and consequences of its proposed course of action. Commerce believes that the rule will reduce the monetary and non-monetary burdens imposed by the regulation of remote sensing, and seeks public comment on this issue. Moreover, Commerce believes that the potential benefits to society resulting from the proposed rule are large relative to any potential costs, primarily because it is the longstanding policy of the United States to endeavor to keep the United States as the world leader in the strategic remote sensing industry. In Commerce’s view, the benefit to society of this regulatory program is primarily to better preserve U.S. national security, which is admittedly difficult to quantify. Due to the national security benefits accrued, it is critical that the most innovative and capable remote sensing systems be licensed to do business from within the United States. A regulatory approach that is less burdensome to industry and thereby encourages businesses not to leave the United States, therefore, is a benefit to U.S. national security. Commerce believes that the proposed regulations will result in no incremental costs to society as compared with the status quo. Generally, the costs to society that might be expected from PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 21287 regulations implementing the Act would be additional barriers to entry in the remote sensing field, and increased costs to operate in this industry. However, the proposed rule takes a significantly lighter regulatory approach than the existing regulations and increases certainty, transparency, and predictability, while still allowing Commerce to preserve U.S. national security and observe international obligations as required by the Act. For these reasons, Commerce believes that the benefits of the proposed rule vastly outweigh its costs, which are expected to be reduced by the proposed rule. Nevertheless, Commerce seeks public input on this issue, and welcomes any quantification of these costs and benefits that would help inform this analysis. Executive Order 13771 This proposed rule is expected to be a deregulatory action under E.O. 13771. Commerce requests public comment on whether affected entities anticipate cost savings from the proposed rule, and in what amount. Regulatory Flexibility Act Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), whenever a Federal agency is required to publish a notice of rulemaking for any proposed rule, it must prepare, and make available for public comment, an initial regulatory flexibility analysis (IRFA) that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). Accordingly, Commerce has prepared the below IRFA for this proposed rule, and seeks public comment on the regulatory burdens associated with the proposed rule. This IRFA describes the economic impact this proposed rule, if adopted, would have on small entities in the space-based remote sensing industry (NAICS 336414, defined as having less than 1,250 employees). A description of the reasons for the action, the objectives of and legal basis for this action are contained in the Summary section of the preamble. The reporting, recordkeeping, and compliance requirements are described in the Paperwork Reduction Act analysis below and the Subpart-bySubpart Overview. Commerce does not believe there are other relevant Federal rules that duplicate, overlap, or conflict with this proposed rule. At the time of the last issuance of a final rule on this subject, Commerce found that the rule would not have a significant economic impact on a substantial number of small entities due to the ‘‘extraordinary capitalization E:\FR\FM\14MYP1.SGM 14MYP1 khammond on DSKBBV9HB2PROD with PROPOSALS 21288 Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules required’’ to develop, launch, and operate a private remote sensing space system. Since that time, significant technological developments have greatly reduced these costs: For example, such developments have resulted in reduced costs to launch partly due to greater competition, and small satellites have become cheaper to produce due to standardization. These changes and others have enabled small businesses, universities, secondary and elementary school classes, and other small entities to enter this field. Based on an analysis of the last decade’s license applications and an attempt to project those trends into the future, Commerce estimates that several dozen and up to a couple hundred small entities may be affected by this proposed rule in the years to come. Commerce has attempted to minimize the economic impact to small businesses in its proposed rule. Most notably, Commerce has proposed a twocategory framework that establishes less burdensome regulatory requirements on low-risk systems. Commerce anticipates that future small businesses would be likely to operate low-risk systems, especially because the rule requires Commerce to update the low-risk criteria at least every two years. The low-risk requirements involve significantly less burdensome and less frequent compliance reporting than the existing regulations. For example, lowrisk systems are required only to submit an application and, after the grant of a license, an annual certification that all information remains true. This is significantly less than the existing paperwork burden, which includes quarterly and annual audits, and data protection plans. However, even if small businesses operate ‘‘high-risk’’ systems under the proposed rule, the majority of them would nevertheless receive significant benefits compared to the status quo. Commerce has estimated that over 80 percent of all future applicants, whether low- or high-risk, would likely receive only the standard license conditions specified in the rule, and not be subject to individualized interagency review or specialized license conditions. This results in significantly increased transparency and certainty for small businesses, even if they are operating ‘‘high-risk’’ systems. Commerce considered four alternatives to the proposed rule. The first alternative was to retain the status quo and not update the regulations. As stated above, however, the proposed rule was promulgated under the nowoutdated assumption that small businesses, for financial reasons, would VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 not enter the space-based remote sensing industry. Experience has demonstrated that small businesses are now participating in this industry and they are required to comply with the existing regulations’ requirements. Commerce estimates that the proposed rule would result in significantly lower regulatory burdens on almost all of these businesses as compared with the existing regulations, as evidenced by the dramatically reduced paperwork burden discussed below in the Paperwork Reduction Act section. Therefore, Commerce does not believe that the status quo alternative would minimize any significant economic impact on small businesses. The second alternative was to retain the simplified, non-differentiated structure of the status quo regulations, updating them only for technological developments. In other words, Commerce could have retained the bulk of the existing regulations and edited them in minor ways only to account for technological changes since 2006. For the same reasons as those given above, Commerce believes that this alternative would not have minimized any significant economic impact on small businesses. As stated above, the proposed rule will result in significantly less paperwork for all licensees, and in dramatically increased certainty and transparency for the vast majority of licensees, which will provide small businesses in this industry with a much lighter regulatory approach that is not available under the existing regulations’ framework. The third alternative was to repeal the status quo regulations and not replace them, instead relying solely on the terms of the Act. The Act gives the Secretary the authority to issue regulations and requires the Secretary to publish a complete list of information required to apply for a license in the Federal Register, but regulations are not required. Commerce believes this alternative, however, would result in too little transparency, predictability, and certainty for businesses, particularly small businesses that lack the resources to invest in designing a potential system without any prior insight into the process for application review or expected license conditions. Therefore, this alternative is likely to result in fewer small businesses entering the remote sensing market. Additionally, without processes and standards for Commerce’s decisions set in regulations, Commerce’s actions towards individual applicants and licensees might have the appearance of being arbitrary and capricious. PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 The fourth alternative was to update the status quo regulations to provide an expanded role for the Departments of Defense and State, and the Office of the Director of National Intelligence, in recognition of the threat to national security posed by some of the latest technological developments. This alternative would provide more certainty to the U.S. Government in its ability to completely address national security concerns arising from particular systems. However, Commerce believes the resulting harm to industry from the reduced certainty, increased delays and increased cost in some cases would frustrate the policy for the U.S. remote sensing industry to maintain its world leadership role and would particularly affect small businesses in that regard. Paperwork Reduction Act This proposed rule contains a revised collection-of-information requirement subject to the Paperwork Reduction Act (PRA, 44 U.S.C. 3501 et seq.) that will modify the existing collection-ofinformation requirement that was approved by OMB under control number 0648–0174 in January, 2017. This revised requirement will be submitted to OMB for approval along with the proposed rule. Public reporting burden for this requirement is estimated to average: 20 hours for the submission of a license application; 10 hours for the completion of a Cybersecurity Framework (high-risk systems only); 1 hour for the submission of a notification of each deployment to orbit; 1 hour for the submission of notification of a system anomaly or disposal; 1 hour for notification of financial insolvency; 1 hour for a license modification request (if the licensee desires one); 10 hours for completion of an Orbital Debris Mitigation Standard Practices (ODMSP) plan, and 2 hours for an annual compliance certification (low- and highrisk systems), plus 2 additional hours for a semiannual compliance certification (high-risk systems only). Commerce estimates that this burden is less than half of the existing paperwork burden (an estimated 48 hours compared with 110). Commerce invites public comment on the accuracy of the existing burdens and our estimates of the burdens under the proposed rule. 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. Regardless of any other provision of the law, no person is required to respond to, nor shall any E:\FR\FM\14MYP1.SGM 14MYP1 Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules 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. For ease of comparison between the existing and proposed revised 21289 paperwork burdens, Commerce provides the following table: TABLE 1 Existing burden (hrs) Application .................................................................................................................... Data Protection Plan (including data flow diagram, plans to comply with Kyl-Bingaman and data collection restrictions). Cybersecurity Framework (high-risk only) ................................................................... License amendment (Modification) .............................................................................. Public summary ............................................................................................................ Foreign agreements notifications ................................................................................. Completion of Pre-Ship Review ................................................................................... Information when Spacecraft Becomes Operational ................................................... Demise of System or Discontinuation of Operations ................................................... Orbital Debris Mitigation Standard Practices Plan ....................................................... Operational Deviation ................................................................................................... Financial Insolvency ..................................................................................................... Planned Information Purge .......................................................................................... Operational Quarterly Report ....................................................................................... Semiannual Compliance Certification (high-risk only) ................................................. Annual Compliance Audit (Certification) ...................................................................... Annual Operational Audit ............................................................................................. 40 .............................................................. 23 .............................................................. 20 n/a n/a ............................................................. 10 .............................................................. 2 ................................................................ 2 ................................................................ 1 ................................................................ 2 ................................................................ 2 ................................................................ Comparable to existing part of application 4 ................................................................ n/a ............................................................. 2 ................................................................ 3 ................................................................ n/a ............................................................. 8 ................................................................ 10 .............................................................. 10 1 n/a n/a n/a 1 n/a 10 1 1 n/a n/a 2 2 n/a Total ...................................................................................................................... 110 ............................................................ 48 National Environmental Policy Act Publication of this proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment. Therefore, an environmental impact statement is not required. List of Subjects in 15 CFR Part 960 Administrative practice and procedure, confidential business information, Penalties, Reporting and record keeping requirements, Satellites, Scientific equipment, Space transportation and exploration. Dated: April 29, 2019. Stephen Volz, Assistant Administrator for Satellite and Information Services, National Oceanic and Atmospheric Administration, Department of Commerce. For the reasons set forth above, 15 CFR part 960 is proposed to be revised as follows: PART 960—LICENSING OF PRIVATE REMOTE SENSING SPACE SYSTEMS khammond on DSKBBV9HB2PROD with PROPOSALS Proposed burden (hrs) Document Subpart A—General Sec. 960.1 Purpose. 960.2 Jurisdiction. 960.3 Applicability to existing licenses. 960.4 Definitions. Subpart B—Risk Categories and General Interagency Consultation Processes 960.5 Risk categories generally. 960.6 Low-risk category criteria. VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 960.7 Process for revising low-risk category criteria. 960.8 Process for revising standard license conditions. Appendix A to Part 960—Application Information Required Subpart C—License Application Submission and Categorization Appendix C to Part 960—License Template 960.9 Application submission. 960.10 Application categorization. Appendix D to Part 960—Memorandum of Understanding Authority: 51 U.S.C. 60124. Subpart D—Low-Risk Category 960.11 960.12 960.13 960.14 960.15 960.16 General. License grant or denial. Standard license conditions. Licensee-requested modifications. Routine compliance and monitoring. Term of license. Subpart E—High-Risk Category 960.17 General. 960.18 Specific license conditions. 960.19 License grant or denial. 960.20 Standard license conditions. 960.21 United States Government-required license modification; reimbursement. 960.22 Licensee-requested modifications. 960.23 Routine compliance and monitoring. 960.24 Term of license. Subpart F—Prohibitions and Enforcement 960.25 960.26 Prohibitions. Investigations and enforcement. Subpart G—Appeals Regarding Licensing Decisions 960.27 Grounds for adjudication by the Secretary. 960.28 Administrative appeal procedures. PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 Appendix B to Part 960—Application Submission Instructions 15 CFR Part 960 Subpart A—General § 960.1 Purpose. These regulations implement the Secretary’s authority to license the operation of private remote sensing space systems under the Land Remote Sensing Policy Act of 1992, as amended, codified at 51 U.S.C. 60101 et seq. § 960.2 Jurisdiction. These regulations set forth the requirements for the operation of private remote sensing space systems within the United States or by a United States citizen. The Secretary does not authorize the use of spectrum for radio communications by a private remote sensing space system, and in the case of a system that is used for remote sensing and other purposes, as determined by the Secretary, the scope of the license issued under this part will not extend to the operation of instruments that do not support remote sensing. E:\FR\FM\14MYP1.SGM 14MYP1 21290 § 960.3 Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules Applicability to existing licenses. Licensees that have obtained license(s) under the procedures established in 15 CFR part 960 (2006) may request, in writing to the Secretary, that such license(s) be replaced with one developed in accordance with this part. Such requests would be processed, in the sole discretion of the Secretary, in accordance with the procedures for new applications in Subparts C, D, and E, as appropriate. During this process, the licensee’s existing license(s) would remain valid. khammond on DSKBBV9HB2PROD with PROPOSALS § 960.4 Definitions. For purposes of this part, the following terms have the following meanings: Act means the Land Remote Sensing Policy Act of 1992, as amended, codified at 51 U.S.C. 60101 et seq. Anomaly means an unexpected event or abnormal characteristic that could indicate a technical malfunction or security threat. Appellant means a person to whom the Secretary has certified an appeal request. Applicant means a person who submits an application to operate a private remote sensing space system. Application means a document submitted by a person to the Secretary that contains all the information described in Appendix A of this part. Data means the output from a remote sensing instrument, regardless of level of processing. Days means working days if referring to a number equal to or less than ten, and calendar days if greater than ten. Ground sample distance or GSD refers to the common measurement for describing the spatial resolution of data created from most remote sensing instruments, typically measured in meters. In writing or written means written communication transmitted via email, forms submitted on the Secretary’s website, and traditional mail. License means a license granted by the Secretary under the Act. Licensee means a person to whom the Secretary has granted a license under the Act. Material fact means any fact an applicant provides in the application (apart from its ODMSP plan), or any fact in Parts C or D of a license derived from information an applicant or licensee provides to the Secretary. Material facts include, but are not limited to, the description of all components of the system and the identity and description of the person. Memorandum of Understanding or MOU means the ‘‘Memorandum of VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 Understanding Among the Departments of Commerce, State, Defense, and Interior, and the Office of the Director of National Intelligence, Concerning the Licensing and Operations of Private Remote Sensing Satellite Systems,’’ dated April 25, 2017, which remains in effect and is included in Appendix D of this part. In the event that any provisions of the MOU conflict with this part, this part shall govern. Modification means any change in the text of a license, whether requested by the licensee or required by the Secretary in accordance with the procedures in this part. Operate means to control the functioning of a remote sensing space system. If multiple persons manage various components of a remote sensing space system, the person with primary control over the functioning of the remote sensing instrument shall be deemed to operate the remote sensing space system. Person or private sector party means any entity or individual other than agencies or instrumentalities of the U.S. Government. Private remote sensing space system or system means a remote sensing space system in which the remote sensing instrument is not owned by an agency or instrumentality of the U.S. Government. Remote sensing means the collection and transmission of data about a sensed object by making use of the electromagnetic waves emitted, reflected, or diffracted by the sensed object. Sensing shall not be considered remote if the sensing instrument is physically attached to the primary sensed object and cannot be maneuvered to effectively sense any other object. Remote sensing instrument means a device that can perform remote sensing. Remote sensing space system means all components that support remote sensing to be or being conducted from an orbit of the Earth or another celestial body, including the remote sensing instrument(s), the (one or more) spacecraft upon which the remote sensing instrument(s) is (are) carried, facilities wherever located, and any other items that support remote sensing and data management, regardless of whether the component is owned or managed by the applicant or licensee. Secretary means the Secretary of Commerce, or his or her designee. Significant or substantial foreign agreement means any contract or legal arrangement with any foreign national, entity, or consortium involving foreign nations or entities, the execution of PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 which will require the prior approval of a license modification. Subsidiary or affiliate means a person that is related to the applicant or licensee by shareholdings or other means of control. Unenhanced data means remote sensing signals or imagery products that are unprocessed or preprocessed. United States citizen means: (1) Any individual who is a citizen of the United States; and (2) Any corporation, partnership, joint venture, association, or other entity organized or existing under the laws of the United States or any State. Subpart B—Risk Categories and General Interagency Consultation Processes § 960.5 Risk categories generally. (a) To promote the swift processing of applications and the appropriate level of continuing supervision, the Secretary, after consultation with appropriate agencies and subject to the interagency dispute resolution procedures in Section IV(B) of the MOU, shall group applications into categories. These categories shall reflect the relative risks to national security and international obligations and policies presented by the proposed operation of the system. Applications will be categorized as either low-risk or high-risk based on the Secretary’s evaluation of the criteria in § 960.6. The Secretary will follow the procedures in this subpart to revise these criteria. (b) Licenses will contain different conditions based on their categorization. The standard license conditions for lowand high-risk applications are found in subparts D and E, respectively. The Secretary will follow the procedures given in this subpart to revise the standard license conditions. (c) In carrying out this part, the Secretary and any agency with a role under this part shall take into consideration the following, among other appropriate considerations: (1) Technological changes in remote sensing; (2) Non-technological changes in the remote sensing space industry, such as to business practices; (3) Changes in the national security and international obligation and policy environment which affects the risks posed by such systems; (4) The relative costs to licensees and benefits to national security and international obligations and policies of license conditions; (5) Changes in the methods available to mitigate risks to national security and international obligations and policies; E:\FR\FM\14MYP1.SGM 14MYP1 Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules (6) The prevalence and capabilities of systems in other nations; (7) The remote sensing regulatory environment in other nations; (8) The potential for overlapping regulatory burdens imposed by other U.S. Government agencies; and (9) The commercial availability of comparable data from other space-based and non-space-based sources. khammond on DSKBBV9HB2PROD with PROPOSALS § 960.6 Low-risk category criteria. When determining whether a system, as proposed in the license application, should be categorized as low-risk under the procedures at § 960.10, the Secretary shall use the following criteria. The system must: (a) Be capable of operating only in one or both of the following electro-optical spectral ranges: (1) In a panchromatic band in the spectral range between 370–900 nanometers, and with a maximum resolution of 15 meters GSD; (2) In no more than four multispectral bands in the spectral range between 370–1100 nanometers, and with a maximum resolution of 30 meters GSD; (b) Be capable of operating only using the following spectral bandwidths for multispectral systems: (1) Any bandwidth if the resolution is coarser than or equal to 30 meters GSD; (2) Individual minimum spectral bandwidth(s) wider than 99 nanometers if the resolution is finer than 30 meters GSD; (c) Encrypt tracking, telemetry, and control transmissions where the key length is at least 128 bits, if the system has propulsion; (d) Be incapable of imaging the same center point of an image on Earth more than once in 24 hours from one or more satellites in a constellation, including by slewing or redirecting the satellite or remote sensing instrument; (e) Be incapable of capturing video, defined as: (1) Imaging more than one frame every 10 seconds if the remote sensing instrument’s resolution is finer than 30 meters GSD; or (2) Imaging more than 30 frames per second if the remote sensing instrument’s resolution is coarser than or equal to 30 meters GSD; (f) Contain no more than three operational spacecraft; (g) Not, as described in its mission profile, disseminate data to the public within 12 hours of collection; (h) Not have any foreign involvement, meaning that: (1) No foreign nationals or entities have any ownership interest in the licensee; and (2) No foreign nationals or entities manage any components of the system; VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 (i) Not, as described in its mission profile, perform night-time imaging, defined as imaging an area of the Earth’s surface when the sun elevation is six degrees or more below the Earth’s horizon relative to the imaged area with a resolution finer than 30 meters GSD; (j) Not, as described in its mission profile, perform non-Earth imaging, defined as conducting remote sensing of an artificial object in space. § 960.7 Process for revising low-risk category criteria. (a) At least every two years, the Secretary will consider, in consultation with the Secretaries of Defense and State, and determine whether to revise the criteria listed in § 960.6. (b) When the Secretary determines that it is prudent to revise the criteria, the Secretary shall consult with the Secretaries of Defense and State on all matters affecting national security and international obligations and policies, and other U.S. Government agencies as deemed appropriate by the Secretary. (c) If the Secretary determines that the criteria listed in § 960.6 require revision, the Secretary shall promulgate revisions to those criteria following public notice and comment in the Federal Register. (d) If, at any point during the procedures in this section, any of the Secretaries objects to any determination, they may elevate the objection pursuant to the interagency dispute resolution procedures in Section IV(B) of the MOU. § 960.8 Process for revising standard license conditions. (a) At least every two years, the Secretary will consider, in consultation with the Secretaries of Defense and State, and determine whether to revise the standard license conditions provided in subparts D and E of this part for low- and high-risk systems, respectively. (b) When the Secretary determines that it is prudent to revise the standard license conditions, the Secretary shall consult with the Secretaries of Defense and State on all matters affecting national security and international obligations and policies, and other U.S. Government agencies as the Secretary deems appropriate. (c) The Secretaries of Defense and State will determine the standard license conditions necessary for lowand high-risk systems, consistent with the Act, to meet national security concerns and international obligations and policies of the United States, respectively. The Secretaries of Defense and State will notify the Secretary of such conditions. (d) The Secretary shall review the determinations under paragraph (c) of PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 21291 this section and, in consultation with the Secretaries of Defense and State, determine whether the concerns addressed therein cannot reasonably be mitigated by the United States. (e) If the Secretary determines that the standard license conditions in subparts D and E of this part require revision, the Secretary shall promulgate revisions to those conditions following public notice and comment in the Federal Register. (f) If, at any point during the procedures in this section, the Secretary, the Secretary of Defense, or the Secretary of State objects to any determination, they may elevate the objection pursuant to the interagency dispute resolution procedures in Section IV(B) of the MOU. (g) As the Secretary deems necessary, the Secretary may consult with the Secretary of the Interior to inform the Secretary’s determination of whether to designate unenhanced data that the licensee must provide. (h) If the Secretary promulgates revised standard license conditions, those revised standard license conditions will not automatically apply to existing licenses. The Secretary shall notify licensees of any changes to standard license conditions resulting from the above procedures, and remind licensees that they may request that the Secretary approve a modification to their license if they would like an updated standard license condition to apply to them. Subpart C—License Application Submission and Categorization § 960.9 Application submission. (a) Before submitting an application, a person may consult informally with the Secretary to discuss matters under this part, including whether a license is likely to be required for a system. (b) A person may submit an application for a license in accordance with the specific instructions found in Appendix B of this part. The application must contain fully accurate and responsive information, as described in Appendix A of this part. (c) Within five days of the submission, the Secretary, after consultation with the Secretaries of Defense and State and subject to the interagency dispute resolution procedures in Section IV(B) of the MOU, shall determine whether the submission is a complete application meeting the requirements of Appendix A of this part. If the submission is a complete application, the Secretary shall immediately notify the applicant in writing. If the submission is not a complete application, the Secretary E:\FR\FM\14MYP1.SGM 14MYP1 21292 Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules shall inform the applicant in writing of what additional information or clarification is required to complete the application. (d) If any information the applicant submitted becomes inaccurate or incomplete at any time after submission to the Secretary but before license grant or denial, the applicant must contact the Secretary and submit correct and updated information as instructed by the Secretary. The Secretary will determine whether the change is significant. If the Secretary makes that determination, the Secretary will notify the applicant that the revision constitutes a new application, and that the previous application is deemed to have been withdrawn. (e) Upon request by the applicant, the Secretary shall provide an update on the status of their application review. khammond on DSKBBV9HB2PROD with PROPOSALS § 960.10 Application categorization. (a) Within five days of the Secretary’s notification to the applicant under § 960.9(c) that the application is complete, the Secretary shall make an initial determination of the appropriate category as follows: (1) If the Secretary determines that the application meets all the criteria in § 960.6, the Secretary: (i) Shall categorize the application as low-risk; or (ii) May, in exceptional circumstances, if the Secretary determines the application presents a novel or not previously licensed capability with unforeseen risk to national security or compliance with international obligations or policies, categorize the application as high-risk. (2) If the Secretary determines that the application does not meet all the criteria in § 960.6, the Secretary: (i) Shall categorize the application as high-risk; or (ii) May, if the Secretary determines the application presents a low risk to national security and international obligations and policies, categorize the application as low-risk. (b) If the Secretary makes an initial determination that an application is high-risk, the Secretary shall also make an initial determination of whether the application should be subject to specific license conditions under § 960.18. The Secretary shall presume that the standard license conditions are sufficient, unless the application presents a novel or not previously licensed capability with unforeseen risk to national security or compliance with international obligations and policies. (c) The Secretary shall notify the Secretaries of Defense and State of the Secretary’s initial determinations under VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 paragraphs (a) and (b) of this section as applicable. (d) If the Secretary of Defense or the Secretary of State objects to the Secretary’s initial determinations in paragraph (a) or (b) of this section within 10 days, and the Secretary disagrees with the grounds given for the objection, the Secretary shall immediately elevate the objection pursuant to the interagency dispute resolution procedures in Section IV(B) of the MOU. (e) Within 25 days of the Secretary’s notification to the applicant under § 960.9(c), the Secretary shall notify the applicant in writing of the category determination unless the category determination is subject to interagency dispute resolution in accordance with paragraph (d) of this section. This notification shall not be a final agency action. (f) If at any time during the review of the application the Secretary determines, in consultation with the Secretaries of Defense and State, that it is prudent to change the category determination of the application, the Secretary may do so, and shall notify the applicant. If the Secretary of Defense or the Secretary of State objects to the Secretary’s decision to change the category determination, and the Secretary disagrees with the grounds given for the objection, the Secretary shall immediately elevate the objection pursuant to the interagency dispute resolution procedures in Section IV(B) of the MOU. Subpart D—Low-Risk Category § 960.11 General. This subpart provides the procedures that the Secretary will follow when considering applications the Secretary determines to be low-risk and, if a license is granted, the license conditions and other terms that will be included in such licenses. § 960.12 License grant or denial. (a) Based on the Secretary’s review of the application, the Secretary must determine whether the applicant will comply with the requirements of the Act, this part, and the license. The Secretary will presume that the applicant will comply, unless the Secretary has specific, credible evidence to the contrary. If the Secretary determines that the applicant will comply, the Secretary shall grant the license. (b) The Secretary shall make the determination in paragraph (a) of this section within 60 days of the notification under § 960.9(c), and shall PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 notify the applicant in writing whether the license is granted or denied. (c) If the Secretary has not notified the applicant whether the license is granted or denied within 60 days, the applicant may submit a request that the license be granted. Within three days of this request, the Secretary shall grant the license, unless the Secretary determines, with specific, credible evidence, that the applicant will not comply with the requirements of the Act, this part, or the license, or the Secretary and the applicant mutually agree to extend this review period. § 960.13 Standard license conditions. (a) All licenses granted under this subpart shall contain the following standard conditions, which cannot be waived. Each license shall specify that the licensee shall: (1) Comply with the Act, this part, the license, applicable domestic legal obligations, and the international obligations of the United States; (2) Operate the system in such manner as to preserve the national security of the United States and to observe international obligations and policies, as articulated in the other conditions included in this license; (3) Upon request, make available to the government of any country (including the United States) unenhanced data collected by the system concerning the territory under the jurisdiction of such government as soon as such data are available and on reasonable terms and conditions, unless doing so would be prohibited by law or license conditions; (4) Make the following unenhanced data available in accordance with 51 U.S.C. 60141: None; (5) In order to make disposition of any satellites in space in a manner satisfactory to the President upon termination of operations under the license: (i) Comply with the latest version of the Orbital Debris Mitigation Standard Practices (ODMSP) issued by the U.S. Government; and (ii) Maintain at all times an up-to-date document that explains how the licensee will comply with the ODMSP; (6) Notify the Secretary in writing: (i) Of the launch and deployment of each system component, to include confirmation that the component matches the orbital parameters and data collection characteristics of the system, as described in Part D of the license, no later than five days after that event; and (ii) Of any deviation of an on-orbit component of the system from the orbital parameters and data collection characteristics of the system, as E:\FR\FM\14MYP1.SGM 14MYP1 khammond on DSKBBV9HB2PROD with PROPOSALS Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules described in Part D of the license, no later than five days after that event; and (7) Request and receive approval for a license modification before taking any action that would contradict a material fact in the license, including executing any significant or substantial foreign agreement. (b) All licenses granted under this subpart shall also contain the following standard conditions, which may be waived or adjusted following the procedures in paragraph (c) of this section. Each license shall specify, absent an approved request to waive or adjust any of the conditions in paragraphs (b)(1) through (7) of this section, that the licensee shall: (1) Refrain from disseminating data of the State of Israel (SOI) area at a resolution more detailed than two meters GSD. The SOI area includes the SOI and those territories occupied by the SOI in June 1967 (the Gaza Strip, the Golan Heights, and the West Bank); (2) Certify that all material facts in the license remain accurate pursuant to the procedures in § 960.15 no later than October 15th of each year; (3) Cooperate with compliance, monitoring, and enforcement authorities described in the Act and this part, and permit the Secretary to access, at all reasonable times, any component of the system for the purpose of ensuring compliance with the Act, the regulations, and the license; (4) Notify the Secretary in writing no later than five days after each disposal of an on-orbit component of the system; (5) Notify the Secretary in writing no later than five days after detection of an anomaly affecting the system, including, but not limited to, an anomaly resulting in loss of ability to operate an on-orbit component of the system; (6) Notify the Secretary in writing no later than five days after the licensee’s financial insolvency or dissolution; and (7) Protect the system and data therefrom by: (i) Implementing appropriate National Institute of Standards and Technology (NIST)-approved encryption, in accordance with the manufacturer’s security policy, and wherein the key length is at least 128 bits, for communications to and from the onorbit components of the system related to tracking, telemetry, and control; and (ii) Implementing measures, consistent with industry best practice, that prevent unauthorized access to the system and identify any unauthorized access. (c) As part of the application, the applicant may request that any license condition listed in paragraph (b) of this section be waived or adjusted. The VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 Secretary may approve the request to waive or adjust any such condition if, after consultation with the Secretaries of Defense and State as appropriate and subject to the interagency dispute resolution procedures in Section IV(B) of the MOU, the Secretary determines that: (1) The requirement is not applicable due to the nature of the applicant or the proposed system; (2) The applicant will achieve the goal in a different way; or (3) There is other good cause to waive or adjust the condition. (d) No other conditions shall be included in a license granted under this subpart, or imposed in such a license after the license has been issued except in accordance with the provisions of § 960.14 or § 960.26. § 960.14 Licensee-requested modifications. (a) The licensee may request in writing that the Secretary modify the license. Such requests should include the reason for the request and relevant supporting documentation. (b) If the Secretary believes that license conditions might be available that are less burdensome than those currently in a license, the Secretary shall notify the licensee and invite the licensee to request a modification. (c) The Secretary may approve or deny a modification request after consultation with the Secretaries of Defense and State as appropriate. (d) If the Secretary determines, after consultation with the Secretaries of Defense and State as appropriate, that the requested modification of a license would result in its re-categorization from low-risk to high-risk, the Secretary shall consult with the Secretaries of Defense or State, as appropriate, to determine whether approval of the request may require additional conditions. If so, the Secretary may also approve the modification request subject to additional conditions after notifying the licensee that approval would require such additional conditions, and giving the licensee an opportunity to withdraw or revise the request. (e) If, at any point during the procedures in paragraph (d) of this section, the Secretary, the Secretary of Defense, or the Secretary of State objects to any determination, they may elevate the objection pursuant to the interagency dispute resolution procedures in Section IV(B) of the MOU. (f) The Secretary shall inform the licensee of the decision under paragraph (c) of this section or a determination under paragraph (d) of this section PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 21293 within 30 days of the request, unless elevation is ongoing under paragraph (e) of this section. § 960.15 Routine compliance and monitoring. (a) By the date specified in the license, the licensee will certify in writing to the Secretary that each material fact in the license remains accurate. (b) If any material fact in the license is no longer accurate at the time the certification is due, the licensee must: (1) Provide all accurate material facts; (2) Explain the reason for any discrepancies between the terms in the license and the accurate material fact; and (3) Seek guidance from the Secretary on how to correct any errors, which may include requesting a license modification. § 960.16 Term of license. (a) The license term begins when the Secretary transmits the signed license to the licensee, regardless of the operational status of the system. (b) The license is valid until the Secretary confirms in writing that the license is terminated, because the Secretary has determined that one of the following has occurred: (1) The licensee has successfully disposed of, or has taken all actions necessary to successfully dispose of, all on-orbit components of the system in accordance with applicable license conditions, and is in compliance with all other requirements of the Act, this part, and the license; (2) The licensee never had system components on orbit and has requested to end the license term; (3) The license is terminated pursuant to § 960.26; or (4) The licensee has executed one of the following transfers, subsequent to the Secretary’s approval of such transfer: (i) Ownership of the system, or the operations thereof, to an agency or instrumentality of the U.S. Government; (ii) Operations to a person who: (A) Will not operate the system from the United States, or (B) Is not a United States citizen. Subpart E—High-Risk Category § 960.17 General. This subpart provides the procedures that the Secretary will follow when considering applications the Secretary determines to be high-risk and, if a license is granted, the standard license conditions and other terms that will be included in such licenses, and the E:\FR\FM\14MYP1.SGM 14MYP1 21294 Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules process for determining any specific license conditions, if necessary. § 960.18 Specific license conditions. (a) If, based on the determination in § 960.10, the Secretary concludes that specific license conditions may be necessary, the following process will apply. (b) The Secretaries of Defense and State, after consulting with any other U.S. Government agencies they deem appropriate, will determine whether any specific license conditions are necessary (in addition to the standard license conditions in § 960.20) to meet national security concerns and international obligations and policies of the United States regarding that application. The Secretaries of Defense and State will notify the Secretary of any such conditions. (c) The Secretary shall review the notifications under paragraph (b) of this section and aim to craft the least burdensome specific license conditions possible by: (1) Determining, in consultation with the Secretaries of Defense and State as appropriate, whether the concerns addressed therein can reasonably be mitigated by the U.S. Government; and (2) Determining, in consultation with the applicant, whether the concerns addressed therein can reasonably be mitigated by the applicant. (d) If, at any point during the above procedures, the Secretary, the Secretary of Defense, or the Secretary of State objects to any determination, they may elevate the objection pursuant to the interagency dispute resolution procedures in Section IV(B) of the MOU. khammond on DSKBBV9HB2PROD with PROPOSALS § 960.19 License grant or denial. (a) Based on the Secretary’s review of the application, the Secretary must determine whether the applicant will comply with the requirements of the Act, this part, and the license. The Secretary will presume that the applicant will comply, unless the Secretary has specific, credible evidence to the contrary. If the Secretary determines that the applicant will comply, the Secretary shall grant the license. (b) The Secretary shall make the above determination within 90 days of the notification under § 960.9(c), and shall notify the applicant in writing whether the license is granted or denied. (c) If the Secretary has not notified the applicant whether the license is granted or denied within 90 days, the applicant may submit a request that the license be granted. Within 10 days of this request, the Secretary shall either: VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 (1) Grant the license unless the Secretary can determine, with specific credible evidence, that the applicant will not comply with the requirements of the Act, this part, or the license; or (2) Notify the applicant in writing of any pending issues and of specific actions required to resolve them, and grant or deny the application within 60 days of that notification, unless the Secretary and the applicant mutually agree to extend this review period. § 960.20 Standard license conditions. (a) Any license granted under this subpart shall contain the conditions determined through the process in § 960.18, if applicable, as well as the standard conditions in this section. (b) All licenses granted under this subpart shall contain the following standard conditions, which cannot be waived. Each license shall specify that the licensee shall: (1) Comply with the Act, this part, and the license, applicable domestic legal obligations, and the international obligations of the United States; (2) Operate the system in such manner as to preserve the national security of the United States and to observe international obligations and policies, as articulated in the other conditions included in this license; (3) Upon request, make available to the government of any country (including the United States) unenhanced data collected by the system concerning the territory under the jurisdiction of such government as soon as such data are available and on reasonable terms and conditions, unless doing so would be prohibited by law or license conditions; (4) Make the following unenhanced data available in accordance with 51 U.S.C. 60141: None; (5) In order to make disposition of any satellites in space in a manner satisfactory to the President upon termination of operations under the license: (i) Comply with the latest version of the Orbital Debris Mitigation Standard Practices (ODMSP) issued by the U.S. Government; and (ii) Maintain at all times an up-to-date document that explains how the licensee will comply with the ODMSP; (6) Notify the Secretary in writing: (i) Of the launch and deployment of each system component, to include confirmation that the component matches the orbital parameters and data collection characteristics of the system, as described in subpart D of this part of the license, no later than five days after that event; and (ii) Of any deviation of an on-orbit component of the system from the PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 orbital parameters and data collection characteristics of the system, as described in subpart D of this part of the license, no later than five days after that event; and (7) Request and receive approval for a license modification before taking any action that would contradict a material fact in the license, including executing any significant or substantial foreign agreement. (c) All licenses granted under this subpart shall also contain the following standard conditions, which may be waived or adjusted following the procedures in paragraph (d) of this section. Each license shall specify, absent an approved request to waive or adjust any of the conditions in paragraphs (c)(1) through (12) of this section, that the licensee shall: (1) Refrain from disseminating data of the State of Israel (SOI) area at a resolution more detailed than two meters GSD. The SOI area includes the SOI and those territories occupied by the SOI in June 1967 (the Gaza Strip, the Golan Heights, and the West Bank); (2) Certify that all material facts in the license remain accurate pursuant to the procedures in § 960.23 no later than April 15th and October 15th of each year; (3) Cooperate with compliance, monitoring, and enforcement authorities described in the Act and this part, and permit the Secretary to access, at all reasonable times, any component of the system for the purpose of ensuring compliance with the Act, the regulations, and the license; (4) Notify the Secretary in writing no later than five days after each disposal of an on-orbit component of the system; (5) Notify the Secretary in writing no later than five days after detection of an anomaly affecting the system, including, but not limited to, an anomaly resulting in loss of ability to operate an on-orbit component of the system; (6) Notify the Secretary in writing no later than five days after the licensee’s financial insolvency or dissolution; (7) Protect the system and data therefrom by: (i) Implementing appropriate National Institute of Standards and Technology (NIST)-approved and validated encryption, in accordance with the manufacturer’s security policy, and wherein the key length is at least 256 bits, for communications to and from the on-orbit components of the system related to tracking, telemetry, and control, and data transmissions throughout the system; (ii) Implementing measures, consistent with industry best practice, that prevent unauthorized access to the E:\FR\FM\14MYP1.SGM 14MYP1 khammond on DSKBBV9HB2PROD with PROPOSALS Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules system and identify any unauthorized access; and (iii) Maintaining a document which describes the means by which the licensee will comply with the conditions in paragraphs (c)(7)(i) and (ii) of this section, using the latest version of the NIST Cybersecurity Framework; (8) Comply with limited operations directives issued by the Secretary, in accordance with a request issued by the Secretary of Defense or the Secretary of State pursuant to the procedures in Section IV(D) of the MOU, that require licensees to temporarily limit data collection and/or distribution in exceptional circumstances to meet significant concerns about national security and international policy; and (i) Be able to comply with limited operations directives at all times; (ii) Provide and continually update the Secretary with a point of contact and an alternate point of contact for limited operations directives; (9) If the licensee conducts remote sensing of an artificial object in space (‘‘collects NEI data’’), the licensee shall: (i) Use only the 370–900 nanometers portion of the electromagnetic spectrum while collecting NEI data; (ii) If the licensee has received written permission to collect NEI data from the operator of the sensed object, the licensee shall request approval from the Secretary to collect that NEI data at least 30 days prior to the planned collection and shall conduct the remote sensing only if the Secretary approves the request. The request shall include an identification of the object; confirmation that the owner and operator have notified applicable manufacturer(s); the orbital location of the object; the licensee’s proposed orbital maneuver plan during the remote sensing of the object; dates of the remote sensing; and the distance between the remote sensing instrument and the object. (iii) If the licensee has not received permission to collect NEI data from the operator of the sensed object, the licensee shall not disseminate or retain in an archive: (A) NEI data at a resolution finer than 0.5 meters; (B) NEI data in which the object fills more than 3x3 pixels of the remote sensing instrument’s focal plane in two orthogonal axes simultaneously; (C) Metadata associated with such NEI data, such as time, position, and altitude of the licensee’s remote sensing instrument; or (D) NEI data of an artificial object in space that has not been successfully correlated with the space tracking catalog found at space-track.org. VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 (10) If the licensee collects night-time imaging data (‘‘NTI data’’), meaning data of an area of the Earth’s surface when the sun’s elevation is six degrees or more below the Earth’s horizon relative to that area using any remote sensing technique other than synthetic aperture radar, the licensee shall: (i) Use only the 370–1,100 nanometers portion of the electromagnetic spectrum while collecting NTI data; (ii) Not disseminate NTI data at a resolution finer than 30 meters GSD; (iii) Not disseminate or retain in an archive, at any resolution, NTI data of the sites identified in the most recent list of NTI Geographic Exclusion Areas provided by the Secretary; and (iv) Not disseminate the list of NTI Geographic Exclusion Areas or the information contained therein (by restating, paraphrasing, or incorporating it in a new form) to any person except its employees and contractors to carry out their job-related duties. (11) If the licensee collects data using the shortwave infrared (1,200–3,000 nanometers) portion of the electromagnetic spectrum (‘‘SWIR data’’), the licensee shall not: (i) Disseminate SWIR data at a resolution finer than 3.7 meters GSD; (ii) Disseminate or retain in an archive, at any resolution, SWIR data of the sites identified in the most recent list of SWIR Geographic Exclusion Areas provided by the Secretary; or (iii) Disseminate the list of SWIR Geographic Exclusion Areas or the information contained therein (by restating, paraphrasing, or incorporating it in a new form) to any person except its employees and contractors to carry out their job-related duties. (12) If the licensee collects data using a synthetic aperture radar (‘‘SAR data’’), the licensee shall not: (i) Disseminate SAR data, associated single-loop complex data, or any complex valued products, at a resolution finer than 0.25 meters impulse response ground plane quality; (ii) Disseminate SAR phase history data, at any resolution; (iii) Transmit SAR data to any ground station located outside the United States; (iv) Utilize any SAR technology, data processing algorithms, or radar signatures developed by the licensee for the U.S. Government, in whole or in part, without the prior written approval of the responsible U.S. Government agency; or (v) Receive SAR radar pulses from remote sensing instruments not listed in this license. (d) As part of the application, the applicant may request that any license PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 21295 condition listed in paragraph (c) of this section be waived or adjusted. The Secretary may approve the request to waive or adjust any such condition if, after consultation with the Secretaries of Defense and State as appropriate and subject to the interagency dispute resolution procedures in Section IV(B) of the MOU, the Secretary determines that: (1) The requirement is not applicable due to the nature of the applicant or the proposed system; (2) The applicant will achieve the goal in a different way; or (3) There is other good cause to waive or adjust the condition. § 960.21 United States Governmentrequired license modification; reimbursement. If, after a license is granted under this subpart, the Secretary of Defense determines that a technical modification to a licensed system is necessary to meet a national security concern, the following procedure will apply: (a) The Secretary of Defense will notify the Secretary of the determination. This determination shall not be delegated below the Secretary of Defense or acting Secretary. (b) The Secretary will consult with the licensee and with other U.S. Government agencies as appropriate to determine whether the technical modifications will cause the licensee to incur additional costs, or to be unable to recover past development costs (including the cost of capital, but not including anticipated profits nor costs ordinarily associated with doing business abroad). (c) If the Secretary determines that the licensee will incur additional costs under paragraph (b) of this section, the Secretary may require the U.S. Government agency or agencies who determined these national security concerns to reimburse the licensee for those additional or unrecoverable costs. (d) The Secretary shall modify the license to reflect the necessary technical modifications and coordinate reimbursement, if applicable. (e) If, at any point during the above procedures, the Secretary, the Secretary of Defense, or the Secretary of State objects to any determination, they may elevate the objection pursuant to the interagency dispute resolution procedures in Section IV(B) of the MOU. § 960.22 Licensee-requested modifications. (a) The licensee may request in writing that the Secretary modify the license. Such requests should include the reason for the request and relevant supporting documentation. E:\FR\FM\14MYP1.SGM 14MYP1 21296 Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules (b) If the Secretary believes that license conditions might be available that are less burdensome than those currently in a license, the Secretary shall notify the licensee and invite the licensee to request a modification. (c) The Secretary may approve or deny the modification request after consultation with the Secretaries of Defense and State as appropriate, or consult as appropriate with the Secretaries of Defense or State to determine whether approval of the request may require additional conditions. If so, the Secretary may approve the modification request subject to additional conditions after notifying the licensee that approval would require such additional conditions, and giving the licensee an opportunity to withdraw or revise the request. (d) If, at any point during the procedures in paragraph (c) of this section, the Secretary, the Secretary of Defense, or the Secretary of State objects to any determination, they may elevate the objection pursuant to the interagency dispute resolution procedures in Section IV(B) of the MOU. (e) The Secretary shall inform the licensee of the decision under paragraph (c) of this section within 30 days of the request, unless elevation is ongoing under paragraph (d) of this section. § 960.23 Routine compliance and monitoring. (a) By the date(s) specified in the license, the licensee will certify in writing to the Secretary that each material fact in the license remains accurate. (b) If any material fact in the license is no longer accurate at the time the certification is due, the licensee must: (1) Provide all accurate material facts; (2) Explain any discrepancies between the terms in the license and the accurate material fact; and (3) Seek guidance from the Secretary on how to correct any errors, which may include requesting a license modification. khammond on DSKBBV9HB2PROD with PROPOSALS § 960.24 Term of license. (a) The license term begins when the Secretary transmits the signed license to the licensee, regardless of the operational status of the system. (b) The license is valid until the Secretary confirms in writing that the license is terminated, because the Secretary has determined that one of the following has occurred: (1) The licensee has successfully disposed of, or has taken all actions necessary to successfully dispose of, all on-orbit components of the system in VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 accordance with applicable license conditions, and is in compliance with all other requirements of the Act, this part, and the license; (2) The licensee never had system components on orbit and has requested to end the license term; (3) The license is terminated pursuant to § 960.26; or (4) The licensee has executed one of the following transfers, subsequent to the Secretary’s approval of such transfer: (i) Ownership of the system, or the operations thereof, to an agency or instrumentality of the U.S. Government; (ii) Operations to a person who: (A) Will not operate the system from the United States, or (B) Is not a United States citizen. Subpart F—Prohibitions and Enforcement § 960.25 Prohibitions. Any person who operates a system from the United States and any person who is a United States citizen shall not, directly or through a subsidiary or affiliate: (a) Operate a system without a current, valid license for that system; (b) Violate the Act, this part, or any license condition; (c) Submit false information, interfere with, mislead, obstruct, or otherwise frustrate the Secretary’s actions and responsibilities under this part in any form at any time, including in the application, during application review, during the license term, in any compliance and monitoring activities, or in enforcement activities; or (d) Fail to obtain approval for a license modification before taking any action that would contradict a material fact in the license. § 960.26 Investigations and enforcement. (a) The Secretary may investigate, provide penalties for noncompliance, and prevent future noncompliance, by using the authorities specified at 51 U.S.C. 60123(a). (b) When the Secretary undertakes administrative enforcement proceedings as authorized by 51 U.S.C. 60123(a)(3) and (4), the parties will follow the procedures provided at 15 CFR part 904. Subpart G—Appeals Regarding Licensing Decisions § 960.27 Grounds for adjudication by the Secretary. (a) In accordance with the procedures in this subpart, a person may appeal the following adverse actions for adjudication by the Secretary: (1) The denial of a license; PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 (2) The Secretary’s failure to make a determination on a license grant or denial within the timelines provided in this part; (3) The imposition of a license condition; and (4) The denial of a requested license modification. (b) The only acceptable grounds for appeal of the above actions are as follows: (1) The Secretary’s action was arbitrary, capricious, or contrary to law; or (2) The action was based on a clear factual error. (c) No appeal is available to the extent that there is involved the conduct of military or foreign affairs functions. § 960.28 Administrative appeal procedures. (a) A person wishing to appeal an action specified at § 960.27(a) may do so within 14 days of the action by submitting a written request to the Secretary. (b) The request must include a detailed explanation of the reasons for the appeal, including any claims of factual or legal error. (c) Upon receipt of a request under paragraph (a) of this section, the Secretary shall review the request to certify that it meets the requirements of this subpart and chapter 7 of title 5 of the United States Code. If it does, the Secretary shall coordinate with the appellant to schedule a hearing before a hearing officer designated by the Secretary. If the Secretary does not certify the request, the Secretary shall notify the person in writing that no appeal is available, and this notification shall constitute a final agency action. (d) The hearing shall be held in a timely manner. It shall provide the appellant and the Secretary an opportunity to present evidence and arguments. (e) Hearings may be closed to the public, and other actions taken as the Secretary deems necessary, to prevent the disclosure of any information required by law to be protected from disclosure. (f) At the close of the hearing, the hearing officer shall recommend a decision to the Secretary addressing all factual and legal arguments. (g) Based on the record of the hearing and the recommendation of the hearing officer, the Secretary shall make a decision adopting, rejecting, or modifying the recommendation of the hearing officer. This decision constitutes a final agency action, and is subject to judicial review under chapter 7 of title 5 of the United States Code. E:\FR\FM\14MYP1.SGM 14MYP1 Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules Appendix A to Part 960—Application Information Required To apply for a license to operate a remote sensing space system under 51 U.S.C. 60101 et seq. and 15 CFR part 960, you must provide: 1. Material Facts: Fully accurate and responsive information to the following prompts under ‘‘Description of Licensee’’ and ‘‘Description of System.’’ If a question is not applicable, write ‘‘N/A’’ and explain, if necessary; and 2. Orbital Debris Mitigation Standard Practices (ODMSP) Plan: A document that explains how you will comply with the latest version of the ODMSP issued by the U.S. Government. 3. Your response to each prompt below constitutes material facts. If any information you submit later becomes inaccurate or incomplete before a license grant or denial, you must promptly contact the Secretary and submit correct and updated information as instructed by the Secretary. Please see 15 CFR part 960 subpart C for additional details. khammond on DSKBBV9HB2PROD with PROPOSALS Description of Licensee 1. General Licensee Information a. Name: b. Location and address of applicant: c. Applicant contact information (for example, general corporate or university contact information): d. Contact information for a specific individual to serve as the point of contact with Commerce: e. Place of incorporation, if outside the United States: 2. Ownership interests a. Domestic entities or individuals with an ownership interest in the Licensee totaling more than 50 percent: b. Foreign entities or individuals with any ownership interest in the Licensee: 3. Identity of any subsidiaries and affiliates playing a role in the operation of the System, including a brief description of that role: 4. Any foreign nations who may license the system: Description of System 1. General System Information a. Name of system: b. Brief mission description: 2. Remote Sensing Instrument(s): a. Type(s) of sensor(s), including the spectral range(s) in nanometers in which the sensor is capable of operating (i.e., 370–800; Optical, Radar, Lidar, X-Ray, Multispectral, Hyperspectral, combination of these, Other): b. Spectral bandwidth capability or capabilities in nanometers (i.e., 400 nanometer-wide band; four 20-nanometerwide bands; etc.): c. If sensor is multispectral, number of spectral bands: d. Spatial resolution (GSD, Impulse Response, Other): e. Number of sensors per satellite: f. Whether the mission profile involves performing night-time imaging, defined as imaging an area of the Earth’s surface when the sun’s elevation is six degrees or more below the Earth’s horizon relative to the imaged area with a resolution finer than 30 meters GSD: VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 g. Whether the mission profile involves performing non-Earth imaging, defined as conducting remote sensing of an artificial object in space: h. Whether the system is capable of capturing video, defined as either: A. Imaging at least one frame every 10 seconds if the remote sensing instrument’s resolution is finer than 30 meters GSD; or B. Imaging at least 30 frames per second if the remote sensing instrument’s resolution is coarser than or equal to 30 meters GSD. i. Minimum time between capability of imaging the same center point of an image on Earth more than once, from one or more satellites in a constellation: j. Minimum and average time between when data are collected and disseminated to the public: k. If any entity or individual other than the Licensee will own or control any remote sensing instrument in the System: A. Identity and contact information of that entity or individual: B. Relationship to Licensee (i.e., operating under Licensee’s instructions under a contract): 3. Spacecraft Upon Which the Remote Sensing Instrument(s) is (are) Carried a. Description A. Estimated launch date(s) in calendar quarter: B. Number of spacecraft (system total and maximum in-orbit at one time): b. Altitude range in kilometers: c. Inclination range in degrees: d. Propulsion (yes/no): e. If any entity or individual other than the Licensee will own, control, or manage any spacecraft in the System: A. Identity and contact information of that entity or individual: B. Whether that entity or individual is a U.S. citizen: C. Relationship to Licensee (i.e., operating under Licensee’s instructions under a contract): 4. Ground Components a. Location of Mission Control Center(s): b. Location of Ground Stations (without transmission access), wherever located: c. Location of Ground Access Facilities (with direct downlink or transmission access), wherever located: d. Data Storage and Archive Locations (including description and physical location of physical servers, cloud storage, etc.): e. Description of encryption for telemetry tracking and control and data transmissions, if any (noting the applicable data protection standard license conditions for low- and high-risk systems): f. If any entity or individual other than the Licensee will own, control, or manage any ground components of the System: A. Identity and contact information of that entity or individual: B. Whether that entity or individual is a U.S. citizen: C. Relationship to Licensee (i.e., operating under Licensee’s instructions under a contract): Requests for Standard License Condition Waivers or Adjustments Standard license conditions are listed at 15 CFR 960.13 and 960.20 for low- and high-risk PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 21297 systems, respectively. If requesting that any of these be waived or adjusted, please identify the specific standard license condition and explain why: 1. The requirement is not applicable due to the nature of the applicant or the proposed system; 2. The applicant will achieve the goal in a different way; or 3. There is other good cause to waive or adjust the condition. Appendix B to Part 960—Application Submission Instructions A person may apply to operate a private remote sensing space system by submitting the information to the Secretary as described in Appendix A of this part. This information can be submitted in one of three ways: 1. Complete the fillable form at www.nesdis.noaa.gov/crsra. 2. Respond to the prompts in Appendix A of this part and email your responses to crsra@noaa.gov. 3. Respond to the prompts in Appendix A of this part and mail your responses to: Commercial Remote Sensing Regulatory Affairs, 1335 East-West Highway SSMC–1/G– 101, Silver Spring, MD 20910. Appendix C to Part 960—License Template Part A: Determination and License Grant 1. The Secretary determines that [licensee name], as described in Part C, will comply with the requirements of the Act, the regulations at 15 CFR part 960, and the conditions in this license. 2. Accordingly, the Secretary hereby grants [licensee name] (hereinafter ‘‘Licensee’’), as described in Part C, this license to operate [system name] (hereinafter ‘‘the System’’), as described in Part D, subject to the terms and conditions of this license. This license is valid until its term ends, in accordance with 15 CFR [960.16 or 960.24]. The Licensee must request and receive approval for a license modification before taking any action that would contradict a material fact listed in Part C or D of this license. 3. The Secretary makes this determination, and grants this license, under the Secretary’s authority in 51 U.S.C. 60123 and regulations at 15 CFR part 960. This license does not authorize the System’s use of spectrum for radio communications or the conduct of any non-remote sensing operations that are proposed to be undertaken by the Licensee. This license is not alienable and creates no property right in the Licensee. Part B: License Conditions The Licensee must, at all times: [Depending upon the categorization of the application as low- or high-risk, Commerce will insert the applicable standard license conditions, found either at §§ 960.13 or 960.20, and for a high-risk application, any applicable specific conditions resulting from the process in § 960.18, here.] Part C: Description of Licensee Every term below constitutes a material fact. You must request and receive approval of a license modification before taking any action that would contradict a material fact. E:\FR\FM\14MYP1.SGM 14MYP1 21298 Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS 1. General Licensee Information a. Name: b. Location and address of licensee: c. Licensee contact information (for example, general corporate or university contact information): d. Contact information for a specific individual to serve as the point of contact with Commerce: e. Place of incorporation, if outside the United States: 2. Ownership Interests a. Domestic entities or individuals with an ownership interest in the Licensee totaling more than 50 percent: b. Foreign entities or individuals with any ownership interest in the Licensee: 3. Identity of any subsidiaries and affiliates playing a role in the operation of the System, including a brief description of that role: 4. Point of contact for limited operations directives, if other than the point of contact listed above [note: do not include in low-risk licenses]: 5. Any foreign nations who may license the system: Part D: Description of System Every term below constitutes a material fact. You must request and receive approval of a license modification before taking any action that would contradict a material fact. 1. General System Information a. Name of system: b. Brief mission description: 2. Remote Sensing Instrument(s): a. Type(s) of sensor(s), including the spectral range(s) in nanometers in which the sensor is capable of operating (i.e., 370–800; Optical, Radar, Lidar, X-Ray, Hyperspectral, Video, combination of these, other): b. Spectral bandwidth capability or capabilities in nanometers: c. If sensor is multispectral, number of spectral bands: d. Spatial resolution (GSD, Impulse Response, Other): e. Number of sensors per satellite: f. Whether the mission profile involves performing night-time imaging, defined as imaging an area of the Earth’s surface when the sun’s elevation is six degrees or more below the Earth’s horizon relative to the imaged area with a resolution finer than 30 meters GSD: g. Whether the mission profile involves performing non-Earth imaging, defined as conducting remote sensing of an artificial object in space: h. Whether the system is capable of capturing video, defined as either: A. Imaging at least one frame every 10 seconds if the remote sensing instrument’s resolution is finer than 30 meters GSD; or B. Imaging at least 30 frames per second if the remote sensing instrument’s resolution is coarser than or equal to 30 meters GSD: i. Minimum time between capability of imaging the same center point of an image on Earth more than once, from one or more satellites in a constellation: j. Minimum and average time between when data are collected and disseminated to the public: k. If any entity or individual other than the Licensee will own or control any remote sensing instrument in the System: VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 A. Identity and contact information of that entity or individual: B. Relationship to Licensee (i.e., operating under Licensee’s instructions under a contract): 3. Spacecraft Upon Which Remote Sensing Instrument(s) is (are) Carried a. Description A. Estimated launch date(s) in calendar quarter: B. Number of spacecraft (system total and maximum in-orbit at one time): b. Altitude range in kilometers: c. Inclination range in degrees: d. Propulsion (yes/no): e. If any entity or individual other than the Licensee will own or control any spacecraft in the System: A. Identity and contact information of that entity or individual: B. Whether that entity or individual is a U.S. citizen: C. Relationship to Licensee (i.e., operating under Licensee’s instructions under a contract): 4. Ground Components a. Location of Mission Control Center(s): b. Location of Ground Stations (without transmission access), wherever located: c. Location of Ground Access Facilities (with direct downlink or transmission access), wherever located: d. Data Storage and Archive Locations (including description and physical location of physical servers, cloud storage, etc.): e. Description of encryption for telemetry tracking and control and data transmissions, if any (noting the applicable data protection standard license conditions for low- and high-risk systems): f. If any entity or individual other than the Licensee will own or control any ground components of the System: A. Identity and contact information of that entity or individual: B. Whether that entity or individual is a U.S. citizen: C. Relationship to Licensee (i.e., operating under Licensee’s instructions under a contract): Appendix D to Part 960—Memorandum of Understanding Memorandum of Understanding Among the Departments of Commerce, State, Defense, and Interior, and the Office of the Director of National Intelligence, Concerning the Licensing and Operations of Private Remote Sensing Satellite Systems. April 25, 2017. I. Authorities and Roles This Memorandum of Understanding (MOU) is undertaken pursuant to the National and Commercial Space Programs Act, 51 U.S.C, 60101 et seq. (‘‘the Act’’), 15 CFR part 960, National Security Presidential Directive 27 (NSPD–27), and Presidential Policy Directive-4 PPD–4) (‘‘applicable directives’’), or to any renewal of, or successor to, the Act and the applicable directives. The principal Parties to this MOU are the Department of Commerce (DOC), Department of State (DOS), Department of Defense (DOD), and Department of the Interior (DOI). The PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 Office of the Director of National Intelligence (ODNI) and the Joint Chiefs of Staff (JCS) provide supporting advice pertaining to their areas of expertise. The Secretary of commerce is responsible for administering the licensing of private remote sensing satellite systems pursuant to the Act and applicable directives, and fulfills this responsibility through the National Oceanic and Atmospheric Administration (NOAA). For remote sensing issues, the Act also grants the authority to the Secretary of State to determine conditions necessary to meet international obligations and foreign policies, and to the Secretary of Defense to determine conditions necessary to meet the national security concerns raised by any remote sensing license application submitted pursuant to the Act and applicable directives, or to any amendment, renewal, or successor thereto. In addition, pursuant to this MOU, NOAA shall also consult with the Director of National Intelligence (DNI) for the views of the Intelligence Community (IC) and with the Chairman of the Joint Chiefs of Staff for the views of the DOD joint operational community. II. Purpose The purpose of this MOU is to establish the interagency consultation process for adjudicating remote sensing licensing actions, and the consultation process for the interruption of normal commercial operations pursuant to the Act and applicable directives. III. Policy In consultation with affected departments and agencies, including the DNI and JCS, the Secretary of commerce will impose constraints on private remote sensing systems when necessary to meet the international obligations, foreign policy concerns, and/or national security concerns of the United States, and shall accord with the determinations of the Secretary of State and the Secretary of Defense, and with applicable laws and directives. Procedures for implementing this policy are established below, with each Party to this MOU separately establishing and documenting its internal timelines and decision authorities below the Cabinet level. IV. Procedures for Department/Agency Review A. Consultation During Review of Licensing Actions Pursuant to the Act and applicable directives, or to any renewal thereof or successor thereto, the Secretary of Commerce shall review any application and make a determination within 120 days of receipt of such application. If final action has not occurred within such time, then the Secretary shall inform the applicant of any pending issues and of actions required to resolve them. The DOC will provide copies of requests for licensing actions to DOS, DOD, DOI, ODNl, and JCS within 3 working days. Each of these entities will inform DOC, through NOAA, of the office of primary responsibility, including primary and backup points of contact, for license action coordination. (1) DOC will defer its decision on licensing requests until the other reviewing agencies E:\FR\FM\14MYP1.SGM 14MYP1 Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS have had a reasonable time to review them, as provided in this section. Within 10 working days of receipt, if DOS, DOD, DOI, ODNI, or JCS wants more information or time to review, then it shall notify, in writing, DOC/NOAA (a) of any additional information that it believes is necessary to properly evaluate the licensing action, or (b) of the additional time, not to exceed 10 working days, necessary to complete the review. This notification shall state the specific reasons why the additional information is sought, or why more time is needed. (2) After receiving a complete license package, including any additional information that was requested as described above, DOS, DOD, DOI, ODNI and JCS will provide their final recommendations on the license package within 30 days, or otherwise may request from DOC/NOAA additional time necessary to provide a recommendation. If DOS determines that imposition of conditions on the actions being reviewed is necessary to meet the international obligations and foreign policies of the United States, or DOD determines that imposition of conditions are necessary to address the national security concerns of the United States, the MOU Party identifying the concern will promptly notify, in writing, DOC/NOAA and those departments and agencies responsible for the management of operational land imaging space capabilities of the United States. Such notification shall: (a) Describe the specific national security interests, or the specific international obligations or foreign policies at risk, if the applicant’s system is approved as proposed; (b) set forth the specific basis for the conclusion that operation of the applicant’s system as proposed will not preserve the identified national security interests or the identified international obligations or foreign policies; and (c) either specify the additional conditions that will be necessary to preserve the relevant U.S. interests, or set forth in detail why denial is required to preserve such interests. All notifications under this paragraph must be in writing. B. Interagency Dispute Resolution for Licensing Actions (1) Committees. The following committees are established, described here from the lowest level to the highest, to adjudicate disagreements concerning proposed commercial remote sensing system licenses. (a) Operating Committee on Private Remote Sensing Space Systems. An Operating Committee on Private Remote Sensing Space Systems (RSOC) is established. The Under Secretary of Commerce for Oceans and Atmosphere and NOAA Administrator shall appoint its Chair. Its other principal members shall be representatives of DOS, DOD, and DOI, or their subordinate agencies, who along with their subject matter experts, can speak on behalf of their department or agency. Representatives of the ODNI and the JCS shall participate as supporting members to provide independent advice pertaining to their areas of expertise. The RSOC may invite representatives of United States Government departments or agencies that are not normally represented in the RSOC to participate in the activities of that Committee VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 when matters of interest to such departments or agencies are under consideration. (b) Advisory Committee on Private Remote Sensing Space Systems. An Advisory Committee on Private Remote Sensing Space Systems (ACPRS) is established and shall have as its principal members the Assistant Secretary of Commerce for Environmental Observation and Prediction, who shall be Chair of the Committee, and Assistant Secretary representatives of DOS, DOD, and DOI. Appointed representatives of ODNI and JCS shall participate as supporting members to provide independent advice pertaining to their areas of expertise. Regardless of the department or agency representative’s rank and position, such representative shall speak at the ACPRS on behalf of his/her department or agency. The ACPRS may invite Assistant Secretary level representation of United States Government departments or agencies that are not represented in the ACPRS to participate in the activities of that Committee when matters of interest to such departments or agencies are under consideration. (c) Review Board for Private Remote Sensing Space Systems. The Board shall have, as its principal members, the Under Secretary of commerce for Oceans and Atmosphere, who shall be Chair of the Board, and Under Secretary or equivalent representatives of DOS, DOD, and DOI. The Director of National Intelligence and Chairman of the Joint Chiefs of Staff shall be represented at an appropriate level as supporting members to provide independent advice pertaining to their areas of expertise. The Board may invite the representatives of United States Government departments or agencies that are not represented on the Board, to participate in the activities of the Board when matters of interest to such departments or agencies are under consideration. (2) Resolution Procedures. (a) If, following the various intradepartmental review processes, the principal members of the RSOC do not agree on approving a license or on necessary conditions that would allow for its approval, then the RSOC shall meet to review the license application. The RSOC shall work to resolve differences in the recommendations with the goal of approving licenses with the least restrictive conditions needed to meet the international obligations, foreign policies, or national security concerns of the United States. If the issues cannot be resolved, then the Chair of the RSOC shall prepare a proposed license that reflects the Committee’s views as closely as possible, and provide it to the principal members of the RSOC for approval. The proposed license prepared by the RSOC chair shall contain the conditions determined necessary by DOS or DOD. Principal members have 5 working days to object to the proposed license and seek a decision at a higher level. In the absence of a timely escalation, the license proposed by the RSOC Chair will be issued. (b) If any of the principal Parties disagrees with the proposed license provided by the RSOC Chair, they may escalate the matter to the ACPRS for resolution, Principal Parties must escalate the matter within 5 working days of such a decision. Escalations must be PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 21299 in writing from the principal ACPRS member, and must cite the specific national security, foreign policy, or international obligation concern. Upon receipt of a request to escalate, DOC will suspend any further action on the license action until ACPRS resolution. The ACPRS shall meet to review all departments’ information and recommendations, and shall work to resolve interagency disagreements. Following this meeting, the Chair of the ACPRS shall, within 11 working days from the date of receiving notice of escalation, provide the reviewing departments a proposed license that contains the conditions determined by DOS or DOD. Within 5 working days of receipt of the proposed license, an ACPRS principal member may object to the prepared license and seek to escalate the matter to the Review Board. In the absence of an escalation within 5 working days, the license prepared by the ACPRS Chair will be issued. (c) If any of the principal Parties disagrees with the license prepared by the ACPRS Chair, it may escalate the matter to the Review Board for resolution. Principal Parties must escalate the matter within 5 working days of such a decision. Escalations must be in writing from the principal Review Board member, and must cite the specific national security, foreign policy, or international obligation concern. Upon receipt of a request to escalate, DOC will suspend any further action on the license action until Review Board resolution. The Review Board shall meet to review information and recommendations that are provided by the ACPRS, and such other private remote sensing matters as appropriate. The Chair of the Board shall provide reviewing departments and agencies a proposed license within 11 working days from the date of receiving notice of escalation. The proposed license prepared by the Review Board chair shall contain the conditions determined necessary by DOS or DOD. If no principal Parties object to the proposed license within 5 working days, it will be issued. (d) If, within 5 working days of receipt of the draft license, a principal Party disagrees with any conditions imposed on the license, that Party’s Secretary will promptly notify the Secretary of Commerce and the other principal Parties in writing of such disagreement and the reasons therefor, and a copy will be provided to the Assistant to the President for National Security Affairs and the Assistant to the President for Science and Technology. (e) Upon notification of such a disagreement, DOC will suspend further action on the license that would be inconsistent with the Secretary of State or the Secretary of Defense determination. If the Secretary of commerce believes the limits defined by another Secretary are inappropriate, then the Secretary of Commerce or Deputy Secretary shall consult with his or her counterpart in the relevant department within 10 working days regarding unresolved issues. If the relevant Secretaries are unable to resolve any issues, the Secretary of Commerce will notify the Assistant to the President for National Security Affairs, who, in coordination with E:\FR\FM\14MYP1.SGM 14MYP1 21300 Federal Register / Vol. 84, No. 93 / Tuesday, May 14, 2019 / Proposed Rules the Assistant to the President for Science and Technology, will seek to achieve consensus among departments and agencies, or filing that, by referral to the President. All efforts will be taken to resolve the dispute within 3 weeks of its submission to the Assistant to the President for National Security Affairs and the Assistant to the President for Science and Technology. khammond on DSKBBV9HB2PROD with PROPOSALS C. Interagency Dispute Resolution Concerning Other Commercial Remote Sensing Matters Nothing in this MOU precludes any Party to this MOU from addressing through other appropriate channels, consistent with the Act and applicable directives, any matter regarding commercial remote sensing unrelated to (1) adjudicating remote sensing licensing actions, or (2) the interruption of normal commercial operations. Such matters may be raised using standard coordination processes, including by referral to the Assistant to the President for National Security Affairs, who, in coordination with the Assistant to the President for Science and Technology, will seek to achieve consensus among the departments and agencies, or filing that, by referral to the President, when appropriate. D. Consultation During Review of Interruption of Normal Commercial Operations (1) This section establishes the process to limit the licensee’s data collection and/or distribution where necessary to meet international obligations or foreign policy interests, as determined by the Secretary of State, or during periods of increased concern for national security, as determined by the Secretary of Defense in consultation with the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff. DOC will provide DOS, DOD, ODNI, and JCS copies of licensee correspondence and documents that describe how the licensee will comply with such interruptions of its commercial operations. (2) Conditions should be imposed for the smallest area and for the shortest period necessary to protect the international obligations and foreign policies or national security concerns at issue. Alternatives to prohibitions on collection and/or distribution shall be considered as ‘‘modified operations,’’ such as delaying or restricting the transmission or distribution of data, restricting disseminated data quality, restricting the field of view of the system, obfuscation, encryption of the data, or other means to control the use of the data, provided the licensee has provisions to implement such measures. (3) Except where urgency precludes it, DOS, DOD, DOC, ODNI and JCS will consult to attempt to come to an agreement concerning appropriate conditions to be imposed on the licensee in accordance with determinations made by DOS or DOD. Consultations shall be managed so that, in the event an agreement cannot be reached at the staff level, sufficient time will remain to allow the Secretary of Commerce to consult personally with the Secretary of State, the Secretary of Defense, the Director of National VerDate Sep<11>2014 16:21 May 13, 2019 Jkt 247001 Intelligence, or the Chairman of the Joint Chiefs of Staff as appropriate, prior to the issuance of a determination by the Secretary of State, or the Secretary of Defense, in accordance with (4) below. That function shall not be delegated below the Secretary or acting Secretary. (4) After such consultations, or when the Secretary of State or the Secretary of Defense, specifically determines that urgency precludes consultation with the Secretary of Commerce, the Secretary of State shall determine the conditions necessary to meet international obligations and foreign policy concerns, and the Secretary of Defense shall determine the conditions necessary to meet national security concerns. This function shall not be delegated below the Secretary or acting Secretary. (5) The Secretary of State or the Secretary of Defense will provide to the Secretary of Commerce a determination regarding the conditions required to be imposed on the licensees. The determination will describe the international obligations, specific foreign policy, or national security interest at risk. Upon receipt of the determination, DOC shall immediately notify the licensees of the imposition of limiting conditions on commercial operations. Copies of the determination and any implementing DOC action will be provided promptly to the Assistant to the President for National Security Affairs and the Assistant to the President for Science and Technology. (6) If the Secretary of Commerce believes the conditions determined by another Secretary are inappropriate, he or she will, simultaneous with notification to, and imposition of such conditions on, the licensee, so notify the Secretary of State or the Secretary of Defense, the Assistant to the President for National Security Affairs, and the Assistant to the President for Science and Technology. The Assistant to the President for National Security Affairs, in coordination with the Assistant to the President for Science and Technology, may initiate as soon as possible a Principals-level consultative process to achieve a consensus or, failing that, refer the matter the President for decision. All efforts will be taken to resolve the disagreement within 7 working days of its submission to the Assistant to the President for National Security Affairs and the Assistant to the President for Science and Technology. E. Coordination Before Release of Information Provided or Generated by Other United States Government Departments or Agencies Before releasing any information provided or generated by another department or agency to a licensee or potential licensee, to the public, or to an administrative law judge, the agency proposing the release must consult with the agency that provided or generated the information. The purpose of such consultations will be to review the propriety of any proposed release of information that may be privileged or restricted because it is classified, predecisional, deliberative, proprietary, or protected for other reasons. No information shall be released without the approval of the PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 department or agency that provided or generated it unless required by law. F. No Legal Rights No legal rights or remedies, or legally enforceable causes of action, are created or intended to be created by this MOU. [FR Doc. 2019–09320 Filed 5–13–19; 8:45 am] BILLING CODE 3510–HR–P DEPARTMENT OF LABOR Wage and Hour Division 29 CFR Parts 548 and 778 RIN 1235–AA24 Regular Rate Under the Fair Labor Standards Act Wage and Hour Division, Department of Labor. ACTION: Proposed rule; extension of comment period. AGENCY: This document extends the period for submitting written comments on the Notice of Proposed Rulemaking (NPRM) entitled ‘‘Regular Rate Under the Fair Labor Standards Act.’’ The comment period now ends on June 12, 2019. The Department of Labor (Department) is taking this action to provide interested parties additional time to submit comments in response to requests for extension. DATES: The comment period for the proposed rule published March 29, 2019, at 84 FR 11888, is extended. The period for public comments, which was set to close on May 28, 2019, is extended to June 12, 2019. Comments must be received by 11:59 p.m. on June 12, 2019. ADDRESSES: To facilitate the receipt and processing of written comments on this NPRM, the Department encourages interested persons to submit their comments electronically. You may submit comments, identified by Regulatory Information Number (RIN) 1235–AA24, by either one of the following methods: Electronic comments: Follow the instructions for submitting comments on the Federal eRulemaking Portal http://www.regulations.gov. Mail: Address written submissions to Amy DeBisschop, Acting Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S– 3502, 200 Constitution Avenue NW, Washington, DC 20210. Instructions: This NPRM is available through the Federal Register and the http://www.regulations.gov website. You may also access this document via SUMMARY: E:\FR\FM\14MYP1.SGM 14MYP1

Agencies

[Federal Register Volume 84, Number 93 (Tuesday, May 14, 2019)]
[Proposed Rules]
[Pages 21282-21300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09320]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 960

[Docket No.: 100903432-9396-01]
RIN 0648-BA15


Licensing of Private Remote Sensing Space Systems

AGENCY: National Environmental Satellite, Data, and Information Service 
(NESDIS), National Oceanic and Atmospheric Administration (NOAA), 
Department of Commerce (Commerce).

ACTION: Proposed rule.

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SUMMARY: The Department of Commerce (Commerce), through the National 
Oceanic and Atmospheric Administration (NOAA), licenses the operation 
of private remote sensing space systems under the Land Remote Sensing 
Policy Act of 1992. NOAA's existing regulations implementing the Act 
were last updated in 2006. Commerce is now proposing to rewrite those 
regulations, as described in detail below, to reflect significant 
changes in the space-based remote sensing industry since that time and 
to improve the regulatory approach overall. Commerce requests public 
comment on the new proposed regulations.

DATES: Comments must be received by July 15, 2019.

ADDRESSES: You may send comments by the following methods:
    Federal eRulemaking Portal: Go to: www.regulations.gov and search 
for the docket number NOAA-NESDIS-2018-0058. Click the ``Comment Now!'' 
icon, complete the required fields, and enter or attach your comments.
    Mail: NOAA Commercial Remote Sensing Regulatory Affairs, 1335 East-
West Highway, G101, Silver Spring, Maryland 20910.
    Instructions: The Department of Commerce and NOAA are not 
responsible for comments sent by any other method, to any other address 
or individual, or received after the end of the comment period. All 
submissions received must include the agency name and docket number or 
RIN for this rulemaking. All comments received will be posted without 
change to www.regulations.gov, including any personal or commercially 
proprietary information provided.

FOR FURTHER INFORMATION CONTACT: Tahara Dawkins, Commercial Remote 
Sensing Regulatory Affairs, at 301-713-3385, or Glenn Tallia, NOAA 
Office of General Counsel, at 301-628-1622.

SUPPLEMENTARY INFORMATION: 

Background

    Pursuant to Article VI of the Treaty on Principles Governing the 
Activities of States in the Exploration and Use of Outer Space, 
including the Moon and Other Celestial Bodies (Outer Space Treaty), 
activities of private U.S. entities in outer space require the 
``authorization and continuing supervision'' of the United States 
Government. The Land Remote Sensing Policy Act of 1992, codified at 51 
U.S.C. 60101 et seq. (Act), authorizes the Secretary of Commerce 
(Secretary) to fulfill this responsibility for operators of private 
remote sensing space systems, by authorizing the Secretary to issue and 
enforce licenses for the operation of such systems. The Secretary's 
authority under the Act is currently delegated to the NOAA Assistant 
Administrator for Satellite and Information Services. Under its 
regulations implementing the Act, found at 15 CFR part 960, NOAA has 
issued licenses for over 1,000 imaging satellites, helping to ensure 
that the United States remains the clear world leader in this industry.
    Through the National Space Council, an interagency organization 
established by the President of the United States, chaired by the Vice 
President, and tasked with developing and monitoring the implementation 
of national space policy and strategy, this Administration has made 
clear that long-term U.S. interests are best served by ensuring that 
U.S. industry continues to lead the rapidly maturing and highly 
competitive private remote sensing space market. The Administration's 
goal is to advance and protect U.S. national security and foreign 
policy interests by maintaining the nation's leadership in remote 
sensing space activities, and by sustaining and enhancing the private 
U.S. remote sensing space industry. In short, the Administration aims 
to ensure that the United States remains the world leader in this 
strategic industry.
    To that end, and in accordance with Space Policy Directive-2, 
Commerce began the process of reviewing its private remote sensing 
space system regulations by publishing an Advance Notice of Proposed 
Rulemaking (ANPRM) on June 29, 2018 (83 FR 30592). The ANPRM sought 
public comment on a variety of questions across five topics related to 
the Act, and Commerce received nine detailed responses. Commerce thanks 
all commenters for their thoughtful responses to its ANPRM. Commerce 
incorporated many principles and specific ideas from these comments 
into this proposed rule.
    Based on the wide scope of this undertaking and substantive changes 
desired by the Administration and suggested by the public, Commerce is 
proposing to entirely rewrite the current regulations. Commerce started 
from a blank slate, then incorporated public input from the ANPRM and 
the results of several months' worth of interagency discussions. As 
described in detail below, this proposed rule implements the 
Administration's and the public's shared goals of increasing 
transparency, certainty, and reducing regulatory

[[Page 21283]]

burdens without impairing essential governmental interests, such as 
preserving U.S. national security and adhering to international 
obligations. The most fundamental changes Commerce proposes to meet 
these goals are, first, to create a two-category framework, where the 
license terms are commensurate with the risk posed by the remote 
sensing space system to the national security and international 
obligations of the United States, and, second, to conduct a full 
interagency review and consider custom license conditions only when a 
proposed system is novel and is in the higher risk category. Commerce 
believes this approach will be more efficient, more transparent, and 
less burdensome, and will provide more certainty to the remote sensing 
community, compared with the status quo.
    Commerce invites public comment and requests suggestions for 
additional improvements to the rule in general. Of particular note, 
Commerce seeks feedback on the proposed rule's criteria used to 
distinguish between low- and high-risk systems, and the standard 
license conditions proposed for low- and high-risk systems, 
respectively (including cost of complying with such conditions and 
suggested alternative approaches).

General Overview

    Comments received in response to the ANPRM favored a less 
burdensome regulatory approach; categorizing systems and conditioning 
their operations proportionately, based on the risks they pose to U.S. 
national security and international obligations; and increasing 
transparency in the regulatory process, such as through notice-and-
comment rulemaking. The proposed rule makes several changes based on 
specific concepts supported by the public comments to the ANPRM, 
including the following:
     Updates and clarifies the definition of ``remote 
sensing,'' with the result that many cameras used today in space for 
technical purposes will not require a license;
     Establishes a review process and license conditions based 
on potential risk, separating ``high-risk'' systems from ``low-risk'' 
systems, with the result that, based on a review of past applications, 
approximately 40 percent of future systems would likely be considered 
``low-risk'';
     Incorporates only those conditions specified in the rule 
in all licenses except for proposed systems that are novel and pose a 
high risk, estimated, based on a review of past applications, at under 
20 percent of systems, thereby eliminating the uncertainty, additional 
review time, and regulatory burden imposed by individualized 
interagency review for all non-novel applications;
     Requires the periodic update of the low-risk category 
criteria, standard license conditions, and interagency review processes 
via public notice-and-comment rulemaking, thereby increasing 
transparency and regulatory certainty;
     Reduces the application review time to 60 days for low-
risk systems and 90 days for high-risk systems, and eliminates the 
current practice of ``clock stoppages'' for review of applications; and
     Reduces compliance burdens in several ways, such as:
    [cir] Reducing the number and complexity of license conditions, 
including eliminating the requirement to offer unenhanced data to the 
U.S. Government before deleting (purging) data;
    [cir] Significantly lessens paperwork burdens by reducing the 
information requested in the application and replacing audits with 
certifications; and
    [cir] Incorporating all operating requirements into a single 
license document.

Subpart-by-Subpart Overview

Subpart A: General

    This subpart addresses the scope and applicability of the proposed 
rule, Commerce's jurisdiction, and definitions.
    First, the scope of the Act and, therefore, the proposed rule, do 
not include systems owned or operated by U.S. Government agencies. The 
rule, therefore, has no bearing on U.S. Government remote sensing 
capabilities or the data policy regarding the availability of data or 
products therefrom, such as Landsat and NOAA's operational satellites. 
The proposed rule regulates private remote sensing space systems 
operated by all other entities, which may be commercial, non-profit, 
academic, or otherwise. If such entities are United States citizens, as 
defined in the proposed rule, or foreign entities that would operate a 
private remote sensing space system from the United States, they would 
fall within the Secretary's jurisdiction and require a license.
    Second, the proposed rule's definition of ``remote sensing space 
system'' includes missions to conduct remote sensing from an orbit of 
any celestial body. When the current regulations were last updated, 
Commerce did not foresee that private entities would pursue remote 
sensing missions beyond Earth's orbit; therefore, the current 
regulations limit their jurisdiction to systems in Earth orbit and 
those capable of sensing the Earth. However, as discussed below, the 
Act is not limited to Earth-focused missions. This revised definition 
better reflects the Act's scope and provides clarity for operators of 
remote sensing missions not in Earth orbit that were previously unable 
to identify a U.S. Government agency that was able to clearly and 
directly authorize their proposed mission. Commerce seeks public 
comment on this statutory interpretation.
    Commerce received several comments questioning the statutory 
authority and policy rationale for regulating non-Earth imaging, 
especially where the operator has no intent to image the Earth. 
Commerce believes that the plain language of the Act requires a broader 
scope than simply intentional Earth imaging. In the Act (at 51 U.S.C. 
60101(4)), Congress defined ``land remote sensing'' as the collection 
of imagery of the Earth's surface. However, when Congress created the 
authority for Commerce to issue licenses, it did not limit this 
authority to ``land'' remote sensing. Instead, it provided Commerce 
with a broader authority over all ``private remote sensing space 
systems.'' 51 U.S.C. 60121(a)(1). The Act's legislative history reveals 
this to have been an intentional wording choice. By avoiding the word 
``land,'' which Congress used elsewhere in the Act, Congress made clear 
that Commerce's responsibility to regulate remote sensing was not 
limited to intentional Earth imaging.
    Third, Commerce calls attention to the proposed rule's definition 
of ``remote sensing.'' As drafted, the definition requires 
``transmission'' of data that is collected in space, so instruments 
that collect data in space but never transmit the data (for example, 
traditional star trackers) would not meet the definition of ``remote 
sensing'' and would not need a license. However, Commerce cannot exempt 
systems with poor imaging resolution from the licensing requirement, as 
at least one commenter requested. The Act requires all operators of 
remote sensing space systems to obtain a license before operating, and 
the Act does not provide the authority for Commerce to exempt any 
system that performs ``remote sensing'' from the license requirement.
    The definition of ``remote sensing'' also addresses a point raised 
by several commenters, who requested that Commerce either exempt 
cameras on launch vehicles from the licensing requirement, or create a 
special streamlined licensing category for them.

[[Page 21284]]

In the proposed rule, the definition of ``remote sensing'' excludes 
data from an instrument that is physically attached to the primary 
object being sensed, because this sensing is not ``remote.'' This 
updated definition has the result of excluding many cameras used today 
in space for technical purposes, including cameras attached to second-
stage launch vehicles, where the camera primarily images the launch 
vehicle itself; and cameras primarily viewing a solar array deploying 
on a spacecraft. Therefore, any cameras falling under the exclusion in 
the revised definition would not need a license.
    Fourth, the ANPRM asked how Commerce should decide which entity or 
entities must obtain a license if many entities are involved in a 
single system. All commenters that responded on this point requested 
that Commerce license only the one entity with the greatest control 
over the remote sensing operations of the system. Commerce agrees with 
this suggestion, and has implemented it by clarifying the definition of 
``operate.'' Therefore, under the proposed rule, a single entity will 
be legally responsible for ensuring the compliance of the entire 
system. Commerce notes that the system, as defined, includes all space- 
and ground-based components that support remote sensing and data 
management, regardless of whether the licensee owns or manages it. For 
example, if Company A owns and controls a remote sensing instrument 
that is physically hosted on Company B's spacecraft, it is likely that 
Company A is the correct party to apply for a license, and would be 
responsible for ensuring compliance with all license terms, even if 
they affect or rely on activities conducted by Company B.
    Finally, some commenters suggested Commerce create a form of a 
general license for identical or similar systems. Commerce notes that 
the definition of ``remote sensing space system'' in the proposed rule 
makes clear that a license may authorize a system comprising one or 
more remote sensing instruments and spacecraft. By not limiting how 
many remote sensing instruments qualify as a system, the proposed rule 
permits an applicant to apply for a single license to operate a series 
or constellation of remote sensing instruments. So long as the 
characteristics and capabilities of the entire system are fully and 
accurately described in the application, a system comprising multiple 
instruments could potentially receive a single license.

Subpart B: Risk Categories and General Interagency Consultation 
Processes

    This subpart addresses how Commerce will periodically consult with 
the other U.S. Government agencies with roles specified in the Act: The 
Departments of Defense and State. It also reflects one of the major 
changes in the proposed rule: The distinction between low- and high-
risk systems. In the ANPRM, Commerce suggested the possibility of 
identifying applications posing a ``de minimis'' risk. All commenters 
reacted positively to this idea. After deliberation, Commerce opted to 
attempt to expand this category by including systems deemed to be low-
risk, rather than the more conservative ``de minimis'' risk. Commerce 
hoped this would allow far more applicants into this streamlined and 
less burdensome category, which will receive the license conditions 
specified in Subpart D, rather than the more expansive conditions in 
Subpart E. Similarly, a few commenters suggested implementing a system 
akin to a ``general license'' or notification-based authorization to 
operate a ``de minimis'' risk system. The proposed rule, instead, 
streamlines the individual application and licensing processes for low-
risk systems, which Commerce believes will benefit far more operators 
and will achieve the same policy goals as the commenters' proposals.
    Regarding the risk category criteria, Commerce sought to draft the 
categorization criteria to ensure that a substantial portion of 
licensees would be subject to the low-risk conditions. Under the 
criteria in the proposed rule, Commerce estimates that approximately 40 
percent of existing licensees (primarily educational institutions) 
would have been categorized as low-risk.
    Generally, systems that meet all criteria in this subpart will be 
categorized as low-risk, although the Secretary may categorize as low-
risk some systems that meet less than all of the low-risk criteria 
after consultation with the Secretaries of Defense and State. 
Additionally, the Secretary may categorize as high-risk a system that 
meets all the low-risk criteria, but which poses a high and 
unforeseeable risk because it is novel in some way. Publishing the 
categorization criteria in the rule provides potential applicants with 
greater insight into what category they are likely to be assigned--and, 
therefore, what processes and license conditions they may be subject 
to.
    Commerce seeks public comment on the criteria in section 960.6. 
Commerce requests feedback about whether these criteria (as they 
interact with the corresponding standard license conditions in Subparts 
D and E) appropriately take into account the Administration's goals, 
including the policy factors in 960.5. Commerce also specifically seeks 
comment on whether the terms used in the criteria factors reflect the 
remote sensing industry's own technical parameters, such that the 
criteria can be clearly understood. For example, the criteria include 
whether a system is capable of imaging a center point more than once in 
24 hours; Commerce welcomes comments on whether the remote sensing 
industry has a different, commonly used method to calculate revisit 
rate. Additionally, Commerce seeks comment on the thresholds adopted in 
the criteria. For example, with respect to resolution thresholds, the 
Administration opted to use the capabilities of the public Landsat 
system as a floor for the systems that would be deemed low-risk; that 
is to say, a system is necessarily low-risk if it is no more capable 
than Landsat. As a result, the thresholds for imaging resolution for 
low-risk systems are set at 15 meters panchromatic and 30 meters 
multispectral, respectively. Commerce seeks comment on these and other 
thresholds.
    Commenters variously suggested updating these criteria every one to 
five years, depending on whether the commenters emphasized the need for 
adaptability or certainty. To balance these interests, Commerce 
proposes to review the criteria at least every two years. If Commerce 
believes changes are warranted, it will promulgate updates to the 
criteria through notice-and-comment rulemaking to ensure it is 
transparent and informed.
    Subpart B also provides a process for reviewing and updating 
standard license conditions at least every two years. This process 
mirrors the one discussed above for updating categorization criteria, 
and will likewise promote transparency, certainty, public input, and 
adaptability.
    Additionally, in all places in the proposed rule that include 
interagency consultation, the U.S. Government would be required to use 
the dispute resolution procedures in the 2017 Interagency Memorandum of 
Understanding (MOU). However, the definition of the MOU in the proposed 
rule makes clear that wherever the MOU (which implemented the existing 
regulations) conflicts with the proposed rule, the proposed rule will 
govern. Of particular note, Section IV(A) of the MOU conflicts in large 
part with the proposed rule's interagency consultation process for the 
review of

[[Page 21285]]

applications and inclusion of license conditions described in subparts 
C, D, and E of the proposed rule; therefore, subparts C, D, and E of 
the proposed rule will govern. Furthermore, Section IV(B) refers to 
interagency dispute resolution for licensing actions, but the proposed 
rule uses the committees created in Section IV(B)(1) and escalation 
procedures in Section IV(B)(2) for resolving disputes about matters 
besides individual licensing actions. Therefore, when the proposed rule 
refers to ``interagency dispute resolution procedures in Section IV(B) 
of the MOU,'' the U.S. Government will treat the text of Section IV(B) 
as though it referred to adjudicating any disputes. Commerce 
anticipates that the MOU will help ensure that the procedures in the 
proposed rule work smoothly and quickly.

Subpart C: License Application Submission and Categorization

    This subpart informs applicants of the review procedures that 
Commerce will follow in accepting and beginning review of all 
applications, including the process by which Commerce will categorize 
an application as low- or high-risk based on the criteria specified in 
Subpart B. It provides timelines for internal government procedures and 
for notifying applicants of their category.
    One of the primary benefits to industry from the proposed rule is 
in curtailing the interagency application review process. Under the 
existing regulations, every applicant receives the same interagency 
review, with the potential for specialized license conditions of which 
the applicant had no prior notice. This interagency review process has 
sometimes resulted in prolonged delays to license issuance, and has 
imposed license conditions that the applicant could not have 
anticipated when developing their system.
    Under the proposed rule, Commerce expects that the majority of 
applications would not be subjected to that individualized interagency 
review. Whether they are categorized as low- or high-risk, most 
applications would be subject only to a determination of whether the 
application is complete, its appropriate category, and whether the 
applicant will comply with the law. Only those applications that are 
novel (such that the standard license conditions do not adequately 
address their risks) will be subjected to open-ended interagency review 
and the possibility of specialized license conditions. Based on a 
review of four years of applications, Commerce estimates that over 80 
percent of such applications would not have received individualized 
review or specialized license conditions under the proposed rule. In 
summary, the proposed rule provides significantly expedited review and 
greater certainty for the majority of applications, whether categorized 
as low- or high-risk.

Subpart D: Low-Risk Category

    This subpart exclusively addresses low-risk applications and 
licenses. It contains procedures for completing review of applications 
categorized as low-risk and for granting or denying those licenses. It 
also contains every condition that will be included in each low-risk 
license, and clarifies which conditions may be waived and how.
    A key innovation of the proposed rule, requested by several 
commenters, is that applicants that are informed that their systems 
will be categorized as low-risk will know with certainty what their 
license conditions will be: Applications categorized as low-risk are 
never subject to individual interagency review, can never include 
specific conditions, and Commerce cannot require a modification once a 
license is granted (colloquially, if imprecisely, known as permanent 
``retroactive conditions''). Moreover, these standard license 
conditions are less burdensome than those typically included in 
licenses under the existing regulations. For example, low-risk 
licensees will not be required to encrypt data in transmission or at 
rest, nor must they be able to comply with limited operations orders 
(colloquially known as temporary ``shutter control'').
    The standard license conditions, for both low- and high-risk 
categories, are split into two subsections: Those that are eligible to 
be waived and those that are not. The rule specifies that Commerce will 
consider waiving a condition for good cause, including when the 
condition is inapplicable, or when the licensee can achieve the 
condition's goal another way. Most conditions that are not eligible to 
be waived are specifically required either by the Act or by Section 
1064, Public Law 104-201, (the 1997 Defense Authorization Act), 
referred to as the ``Kyl-Bingaman Amendment.''
    One notable condition relates to data protection. Commerce's 
current regulations do not specify a clear data protection standard, 
instead requiring all licensees to develop, submit, obtain approval of, 
and follow, a ``data protection plan.'' The proposed rule provides 
greater certainty to applicants as to what data protection measures 
will be sufficient, while still retaining flexibility where 
appropriate. Regarding encryption, the standard license conditions in 
the proposed rule require low-risk licensees to choose a National 
Institute of Standards and Technology (NIST)-approved encryption method 
to encrypt telemetry, tracking, and control (TT&C) only (see discussion 
of high-risk data protection conditions below in the Subpart E 
summary). The rule requires the licensee to implement additional 
measures, consistent with industry best practice, to prevent 
unauthorized system access. However, the ``data protection plan'' is no 
longer required.
    Therefore, applicants will know in advance what encryption methods 
will be acceptable, and will not be required to develop or receive 
approval of a data protection plan. However, as with all waivable 
conditions, the applicant may request a waiver and propose an 
alternative means of protection. Commerce believes this strikes an 
appropriate balance between providing certainty and allowing 
flexibility. Commerce seeks feedback on this approach to data 
protection, and on the proposed requirement to implement NIST-approved 
encryption.
    Turning to Commerce's duty to implement the Kyl-Bingaman Amendment, 
the NPRM proposes a standard license condition consistent with the Kyl-
Bingaman Amendment's prohibition against issuing a license that permits 
imagery of Israel that is ``more detailed or precise than . . . is 
available from commercial sources.'' Commerce, interpreting this 
language, reasoned that imagery is ``available from commercial 
sources'' when imagery at a certain resolution is ``readily and 
consistently available in sufficient quantities from non-U.S. sources'' 
to render more stringent resolution restrictions on U.S. licensees 
ineffective (April 25, 2006, 71 FR 24473). Commerce modeled this 
interpretation on export control regulations issued by Commerce's 
Bureau of Industry and Security, which address an analogous concern. 
Applying this standard, Commerce has most recently found that imagery 
of Israel is readily and consistently available at a two-meter 
resolution (October 15, 2018, 83 FR 51929). Commerce proposes to 
reevaluate the resolution determination every two years as a part of 
the routine review of standard license conditions described in Subpart 
B. Commerce seeks comment on the interpretation of the statute at 71 FR 
24479, and on whether the spatial resolution Commerce identifies in the 
relevant standard conditions below is consistent with that 
interpretation (April 25, 2006, 71 FR 24473).
    All commenters favored a presumption of approval for all 
applications. Commerce agrees. This

[[Page 21286]]

subpart implements a presumption of approval for low-risk applications, 
meaning that Commerce must grant the license application unless the 
Secretary has specific, credible evidence that the applicant will not 
comply with applicable legal requirements. This subpart also halves the 
time the Act allows for Commerce to review a low-risk application from 
120 days to 60 days, as requested by a few commenters, and reduces the 
review period for a high-risk application to 90 days.
    For all licensees, the proposed rule dramatically decreases 
paperwork and compliance burdens. The existing regulatory program 
requires the completion of lengthy baseline, quarterly, and annual 
audits, and pre-launch documentation, among other requirements. By 
contrast, the proposed rule replaces such requirements for low-risk 
systems with a single annual certification, as requested by several 
commenters. This certification merely requires the licensee to verify 
that all facts contained in the license are still true.
    The ANPRM requested comments about whether Commerce should impose 
any insurance requirements to address potential liability to the United 
States Government, and to mitigate the risk of orbital debris. All 
commenters that responded on this point argued against imposing such a 
requirement. In lieu of imposing insurance requirements, Commerce is 
proposing a standard license condition (shown in Subparts D and E) 
requiring licensees to comply with the latest version of the Orbital 
Debris Mitigation Standard Practices (ODMSP) issued by the U.S. 
Government, as contemplated by Space Policy Directive-3, section 
6(b)(ii). Commerce anticipates that this requirement will reduce the 
risk of on-orbit collisions and preserve the space environment for all 
users, while imposing minimal additional burdens on industry.
    Commenters also requested greater clarity about license amendments 
and foreign agreements. Whereas the existing regulatory approach to 
these topics can require duplicative paperwork and review processes, 
such as requesting review of a proposed foreign agreement and license 
amendment for the same transaction, the proposed rule greatly 
simplifies the license amendment process and combines it with the 
foreign agreement process. It replaces both of these with a single 
``modification,'' required only when a material fact listed in the 
license changes. For example, if the license specifies that there are 
no foreign ground stations, then a licensee would need to obtain 
approval of a modification before adding a foreign ground station. 
Commerce would review the terms of the foreign agreement as part of its 
analysis about whether to grant the modification request, but the 
licensee would not need to obtain separate approval of the foreign 
agreement.

Subpart E: High-Risk Category

    This subpart exclusively addresses high-risk applications and 
licenses. It contains procedures for completing review of applications 
categorized as high-risk and for granting or denying those licenses. 
Many of these processes are identical to or comparable to those 
included in Subpart D for low-risk applications and licenses, but the 
proposed rule separates them to assist applicants and licensees in 
understanding what terms apply to them.
    There are two types of conditions contemplated in high-risk 
licenses: Standard conditions (which are included in all licenses and 
published in the rule), and specific conditions, which are generated on 
a case-by-case basis, if necessary (because the system is determined to 
be novel, as described in Subpart C), through consultation with other 
U.S. Government agencies. In the course of such interagency 
consultation, the rule commits Commerce to determine, in consultation 
with the Secretaries of Defense and State, whether proposed specific 
license conditions may be reasonably mitigated by U.S. Government 
action, and to follow the MOU escalation procedures in the event of any 
disagreements. It also enables Commerce to involve the applicant during 
the licensing process and consult regarding any proposed specific 
conditions, suggested by some commenters as a way to find creative, 
less-burdensome conditions that still address interagency concerns. 
These procedures are intended to create procedural safeguards against 
unduly burdensome conditions.
    One important standard high-risk condition addresses data 
protection. As discussed previously, the existing regulations do not 
specify data protection criteria, instead requiring the licensee to 
develop, submit, obtain approval of, and then follow a data protection 
plan. By contrast, the proposed rule specifies data protection criteria 
to increase clarity: The standard license conditions in the proposed 
rule require high-risk licensees to choose a NIST-approved and 
validated encryption method with a key length of at least 256 bits for 
encrypting TT&C and all data transmissions, and to implement additional 
measures, consistent with industry best practice, to prevent 
unauthorized system access.
    Recognizing the increased risk posed by the data from high-risk 
systems, the proposed rule requires that high-risk licensees also 
maintain a document that describes the means by which the licensee will 
comply with the license's data protection conditions. The proposed rule 
would require high-risk licensees to use the latest version of NIST's 
Cybersecurity Framework in developing this document; Commerce seeks 
comment on this proposal and whether any alternatives are preferable. 
The licensee is not required to submit the document to Commerce, 
although Commerce may request it and may use it to assist in 
inspections.
    High-risk applications, like low-risk applications described above, 
also benefit from the presumption of approval favored by all 
commenters. This means that Commerce generally must grant these 
licenses within the 90-day review timeline unless there is specific, 
credible evidence that the applicant will not comply with applicable 
legal requirements. The proposed rule eliminates ``clock stoppages'' 
and thereby increases transparency about the timeline.
    As is true for low-risk licenses, the proposed rule combines 
``license amendments'' and ``foreign agreements'' into a single 
``license modification'' process, which is the same for high-risk 
licenses as for low-risk licenses as described above in the overview of 
Subpart D.
    Unlike for low-risk licenses, the proposed rule permits Commerce to 
require license modifications after license issuance to high-risk 
systems that could require technical modifications to the system for 
national security reasons as determined by the Secretary of Defense. 
However, the proposed rule includes the Act's procedure which provides 
that Commerce may require the U.S. Government to reimburse affected 
licensees for additional costs associated with such technical 
modifications.
    Finally, the proposed rule dramatically reduces paperwork for high-
risk licenses. Almost all compliance documents, such as routine audits, 
are replaced by a semi-annual certification.

Subpart F: Prohibitions and Enforcement

    This subpart reduces the number of possible violations compared 
with the existing regulations. It also simplifies the regulatory 
language regarding the Secretary's authorities to investigate,

[[Page 21287]]

penalize, and prevent violations of the law, often by referring 
directly to the statutory authorities.

Subpart G: Appeals

    This subpart clarifies the actions subject to administrative and 
judicial appeal, and the appeal procedures.

Appendices

    For transparency and certainty, the following are included as 
Appendices to the proposed rule: (1) Information required in an 
application, (2) application submission instructions, (3) information 
to be included in a license, and (4) the 2017 Interagency MOU. Because 
license modifications are required prior to taking any action that 
would result in the information included in the license becoming 
inaccurate, it is important to note what information Commerce proposes 
to include in the license (Appendix C).

Classification

    Commerce seeks public comment on the below regulatory analyses, 
including the analysis of entities affected, estimated burdens to 
industry, and anticipated benefits to society. Commerce welcomes public 
input on the monetary and non-monetary burdens imposed under the 
existing regulations, as well as those estimated under the proposed 
rule. Commerce also welcomes information on regulatory alternatives 
consistent with the Act that better address the goals of this 
Administration and of the statutes and Executive Orders described 
below.

Regulatory Planning and Review--Executive Orders 12866 and 13563

    E.O. 12866 provides that the Office of Information and Regulatory 
Affairs (OIRA) in the Office of Management and Budget (OMB) will review 
all significant rules. OIRA has determined that this rule is 
significant for purposes of E.O. 12866.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. Commerce has developed this rule in a manner consistent with 
these requirements. This proposed rule is consistent with E.O. 13563, 
and in particular with the requirement of retrospective analysis of 
existing rules, designed ``to make the agency's regulatory program more 
effective or less burdensome in achieving the regulatory objectives,'' 
for the reasons given below. In addition, its requirement to make 
standard conditions to be included in licenses issued under the 
regulations subject to notice and comment rulemaking will greatly 
enhance transparency, predictability and certainty for potential market 
entrants.
    Commerce believes that there is substantial information 
demonstrating the need for and consequences of the proposed action 
because it has engaged with the industry and the public in recent 
years, including through NOAA's Advisory Committee on Commercial Remote 
Sensing (ACCRES), to study changes in the industry. Through direct 
contact with the remote sensing space industry, ACCRES, and other fora, 
Commerce is well informed about the growth in the industry and the 
challenges imposed by the existing regulations. Commerce also seeks 
public input on this proposed rule to obtain even more information 
about the need for and consequences of its proposed course of action.
    Commerce believes that the rule will reduce the monetary and non-
monetary burdens imposed by the regulation of remote sensing, and seeks 
public comment on this issue. Moreover, Commerce believes that the 
potential benefits to society resulting from the proposed rule are 
large relative to any potential costs, primarily because it is the 
longstanding policy of the United States to endeavor to keep the United 
States as the world leader in the strategic remote sensing industry. In 
Commerce's view, the benefit to society of this regulatory program is 
primarily to better preserve U.S. national security, which is 
admittedly difficult to quantify. Due to the national security benefits 
accrued, it is critical that the most innovative and capable remote 
sensing systems be licensed to do business from within the United 
States. A regulatory approach that is less burdensome to industry and 
thereby encourages businesses not to leave the United States, 
therefore, is a benefit to U.S. national security.
    Commerce believes that the proposed regulations will result in no 
incremental costs to society as compared with the status quo. 
Generally, the costs to society that might be expected from regulations 
implementing the Act would be additional barriers to entry in the 
remote sensing field, and increased costs to operate in this industry. 
However, the proposed rule takes a significantly lighter regulatory 
approach than the existing regulations and increases certainty, 
transparency, and predictability, while still allowing Commerce to 
preserve U.S. national security and observe international obligations 
as required by the Act. For these reasons, Commerce believes that the 
benefits of the proposed rule vastly outweigh its costs, which are 
expected to be reduced by the proposed rule. Nevertheless, Commerce 
seeks public input on this issue, and welcomes any quantification of 
these costs and benefits that would help inform this analysis.

Executive Order 13771

    This proposed rule is expected to be a deregulatory action under 
E.O. 13771. Commerce requests public comment on whether affected 
entities anticipate cost savings from the proposed rule, and in what 
amount.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), 
whenever a Federal agency is required to publish a notice of rulemaking 
for any proposed rule, it must prepare, and make available for public 
comment, an initial regulatory flexibility analysis (IRFA) that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
Accordingly, Commerce has prepared the below IRFA for this proposed 
rule, and seeks public comment on the regulatory burdens associated 
with the proposed rule.
    This IRFA describes the economic impact this proposed rule, if 
adopted, would have on small entities in the space-based remote sensing 
industry (NAICS 336414, defined as having less than 1,250 employees). A 
description of the reasons for the action, the objectives of and legal 
basis for this action are contained in the Summary section of the 
preamble. The reporting, recordkeeping, and compliance requirements are 
described in the Paperwork Reduction Act analysis below and the 
Subpart-by-Subpart Overview. Commerce does not believe there are other 
relevant Federal rules that duplicate, overlap, or conflict with this 
proposed rule.
    At the time of the last issuance of a final rule on this subject, 
Commerce found that the rule would not have a significant economic 
impact on a substantial number of small entities due to the 
``extraordinary capitalization

[[Page 21288]]

required'' to develop, launch, and operate a private remote sensing 
space system. Since that time, significant technological developments 
have greatly reduced these costs: For example, such developments have 
resulted in reduced costs to launch partly due to greater competition, 
and small satellites have become cheaper to produce due to 
standardization. These changes and others have enabled small 
businesses, universities, secondary and elementary school classes, and 
other small entities to enter this field. Based on an analysis of the 
last decade's license applications and an attempt to project those 
trends into the future, Commerce estimates that several dozen and up to 
a couple hundred small entities may be affected by this proposed rule 
in the years to come.
    Commerce has attempted to minimize the economic impact to small 
businesses in its proposed rule. Most notably, Commerce has proposed a 
two-category framework that establishes less burdensome regulatory 
requirements on low-risk systems. Commerce anticipates that future 
small businesses would be likely to operate low-risk systems, 
especially because the rule requires Commerce to update the low-risk 
criteria at least every two years. The low-risk requirements involve 
significantly less burdensome and less frequent compliance reporting 
than the existing regulations. For example, low-risk systems are 
required only to submit an application and, after the grant of a 
license, an annual certification that all information remains true. 
This is significantly less than the existing paperwork burden, which 
includes quarterly and annual audits, and data protection plans.
    However, even if small businesses operate ``high-risk'' systems 
under the proposed rule, the majority of them would nevertheless 
receive significant benefits compared to the status quo. Commerce has 
estimated that over 80 percent of all future applicants, whether low- 
or high-risk, would likely receive only the standard license conditions 
specified in the rule, and not be subject to individualized interagency 
review or specialized license conditions. This results in significantly 
increased transparency and certainty for small businesses, even if they 
are operating ``high-risk'' systems.
    Commerce considered four alternatives to the proposed rule. The 
first alternative was to retain the status quo and not update the 
regulations. As stated above, however, the proposed rule was 
promulgated under the now-outdated assumption that small businesses, 
for financial reasons, would not enter the space-based remote sensing 
industry. Experience has demonstrated that small businesses are now 
participating in this industry and they are required to comply with the 
existing regulations' requirements. Commerce estimates that the 
proposed rule would result in significantly lower regulatory burdens on 
almost all of these businesses as compared with the existing 
regulations, as evidenced by the dramatically reduced paperwork burden 
discussed below in the Paperwork Reduction Act section. Therefore, 
Commerce does not believe that the status quo alternative would 
minimize any significant economic impact on small businesses.
    The second alternative was to retain the simplified, non-
differentiated structure of the status quo regulations, updating them 
only for technological developments. In other words, Commerce could 
have retained the bulk of the existing regulations and edited them in 
minor ways only to account for technological changes since 2006. For 
the same reasons as those given above, Commerce believes that this 
alternative would not have minimized any significant economic impact on 
small businesses. As stated above, the proposed rule will result in 
significantly less paperwork for all licensees, and in dramatically 
increased certainty and transparency for the vast majority of 
licensees, which will provide small businesses in this industry with a 
much lighter regulatory approach that is not available under the 
existing regulations' framework.
    The third alternative was to repeal the status quo regulations and 
not replace them, instead relying solely on the terms of the Act. The 
Act gives the Secretary the authority to issue regulations and requires 
the Secretary to publish a complete list of information required to 
apply for a license in the Federal Register, but regulations are not 
required. Commerce believes this alternative, however, would result in 
too little transparency, predictability, and certainty for businesses, 
particularly small businesses that lack the resources to invest in 
designing a potential system without any prior insight into the process 
for application review or expected license conditions. Therefore, this 
alternative is likely to result in fewer small businesses entering the 
remote sensing market. Additionally, without processes and standards 
for Commerce's decisions set in regulations, Commerce's actions towards 
individual applicants and licensees might have the appearance of being 
arbitrary and capricious.
    The fourth alternative was to update the status quo regulations to 
provide an expanded role for the Departments of Defense and State, and 
the Office of the Director of National Intelligence, in recognition of 
the threat to national security posed by some of the latest 
technological developments. This alternative would provide more 
certainty to the U.S. Government in its ability to completely address 
national security concerns arising from particular systems. However, 
Commerce believes the resulting harm to industry from the reduced 
certainty, increased delays and increased cost in some cases would 
frustrate the policy for the U.S. remote sensing industry to maintain 
its world leadership role and would particularly affect small 
businesses in that regard.

Paperwork Reduction Act

    This proposed rule contains a revised collection-of-information 
requirement subject to the Paperwork Reduction Act (PRA, 44 U.S.C. 3501 
et seq.) that will modify the existing collection-of-information 
requirement that was approved by OMB under control number 0648-0174 in 
January, 2017. This revised requirement will be submitted to OMB for 
approval along with the proposed rule.
    Public reporting burden for this requirement is estimated to 
average: 20 hours for the submission of a license application; 10 hours 
for the completion of a Cybersecurity Framework (high-risk systems 
only); 1 hour for the submission of a notification of each deployment 
to orbit; 1 hour for the submission of notification of a system anomaly 
or disposal; 1 hour for notification of financial insolvency; 1 hour 
for a license modification request (if the licensee desires one); 10 
hours for completion of an Orbital Debris Mitigation Standard Practices 
(ODMSP) plan, and 2 hours for an annual compliance certification (low- 
and high-risk systems), plus 2 additional hours for a semiannual 
compliance certification (high-risk systems only). Commerce estimates 
that this burden is less than half of the existing paperwork burden (an 
estimated 48 hours compared with 110). Commerce invites public comment 
on the accuracy of the existing burdens and our estimates of the 
burdens under the proposed rule.
    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. Regardless of any other provision of the 
law, no person is required to respond to, nor shall any

[[Page 21289]]

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.
    For ease of comparison between the existing and proposed revised 
paperwork burdens, Commerce provides the following table:

                                 Table 1
------------------------------------------------------------------------
                                       Existing burden       Proposed
             Document                       (hrs)          burden (hrs)
------------------------------------------------------------------------
Application.......................  40..................              20
Data Protection Plan (including     23..................             n/a
 data flow diagram, plans to
 comply with Kyl-Bingaman and data
 collection restrictions).
Cybersecurity Framework (high-risk  n/a.................              10
 only).
License amendment (Modification)..  10..................               1
Public summary....................  2...................             n/a
Foreign agreements notifications..  2...................             n/a
Completion of Pre-Ship Review.....  1...................             n/a
Information when Spacecraft         2...................               1
 Becomes Operational.
Demise of System or                 2...................             n/a
 Discontinuation of Operations.
Orbital Debris Mitigation Standard  Comparable to                     10
 Practices Plan.                     existing part of
                                     application.
Operational Deviation.............  4...................               1
Financial Insolvency..............  n/a.................               1
Planned Information Purge.........  2...................             n/a
Operational Quarterly Report......  3...................             n/a
Semiannual Compliance               n/a.................               2
 Certification (high-risk only).
Annual Compliance Audit             8...................               2
 (Certification).
Annual Operational Audit..........  10..................             n/a
                                   -------------------------------------
    Total.........................  110.................              48
------------------------------------------------------------------------

National Environmental Policy Act

    Publication of this proposed rule does not constitute a major 
Federal action significantly affecting the quality of the human 
environment. Therefore, an environmental impact statement is not 
required.

List of Subjects in 15 CFR Part 960

    Administrative practice and procedure, confidential business 
information, Penalties, Reporting and record keeping requirements, 
Satellites, Scientific equipment, Space transportation and exploration.

    Dated: April 29, 2019.
Stephen Volz,
Assistant Administrator for Satellite and Information Services, 
National Oceanic and Atmospheric Administration, Department of 
Commerce.

    For the reasons set forth above, 15 CFR part 960 is proposed to be 
revised as follows:

PART 960--LICENSING OF PRIVATE REMOTE SENSING SPACE SYSTEMS

Subpart A--General
Sec.
960.1 Purpose.
960.2 Jurisdiction.
960.3 Applicability to existing licenses.
960.4 Definitions.
Subpart B--Risk Categories and General Interagency Consultation 
Processes
960.5 Risk categories generally.
960.6 Low-risk category criteria.
960.7 Process for revising low-risk category criteria.
960.8 Process for revising standard license conditions.
Subpart C--License Application Submission and Categorization
960.9 Application submission.
960.10 Application categorization.
Subpart D--Low-Risk Category
960.11 General.
960.12 License grant or denial.
960.13 Standard license conditions.
960.14 Licensee-requested modifications.
960.15 Routine compliance and monitoring.
960.16 Term of license.
Subpart E--High-Risk Category
960.17 General.
960.18 Specific license conditions.
960.19 License grant or denial.
960.20 Standard license conditions.
960.21 United States Government-required license modification; 
reimbursement.
960.22 Licensee-requested modifications.
960.23 Routine compliance and monitoring.
960.24 Term of license.
Subpart F--Prohibitions and Enforcement
960.25 Prohibitions.
960.26 Investigations and enforcement.
Subpart G--Appeals Regarding Licensing Decisions
960.27 Grounds for adjudication by the Secretary.
960.28 Administrative appeal procedures.

Appendix A to Part 960--Application Information Required

Appendix B to Part 960--Application Submission Instructions

Appendix C to Part 960--License Template

Appendix D to Part 960--Memorandum of Understanding

    Authority:  51 U.S.C. 60124.

15 CFR Part 960

Subpart A--General


Sec.  960.1  Purpose.

    These regulations implement the Secretary's authority to license 
the operation of private remote sensing space systems under the Land 
Remote Sensing Policy Act of 1992, as amended, codified at 51 U.S.C. 
60101 et seq.


Sec.  960.2  Jurisdiction.

    These regulations set forth the requirements for the operation of 
private remote sensing space systems within the United States or by a 
United States citizen. The Secretary does not authorize the use of 
spectrum for radio communications by a private remote sensing space 
system, and in the case of a system that is used for remote sensing and 
other purposes, as determined by the Secretary, the scope of the 
license issued under this part will not extend to the operation of 
instruments that do not support remote sensing.

[[Page 21290]]

Sec.  960.3  Applicability to existing licenses.

    Licensees that have obtained license(s) under the procedures 
established in 15 CFR part 960 (2006) may request, in writing to the 
Secretary, that such license(s) be replaced with one developed in 
accordance with this part. Such requests would be processed, in the 
sole discretion of the Secretary, in accordance with the procedures for 
new applications in Subparts C, D, and E, as appropriate. During this 
process, the licensee's existing license(s) would remain valid.


Sec.  960.4  Definitions.

    For purposes of this part, the following terms have the following 
meanings:
    Act means the Land Remote Sensing Policy Act of 1992, as amended, 
codified at 51 U.S.C. 60101 et seq.
    Anomaly means an unexpected event or abnormal characteristic that 
could indicate a technical malfunction or security threat.
    Appellant means a person to whom the Secretary has certified an 
appeal request.
    Applicant means a person who submits an application to operate a 
private remote sensing space system.
    Application means a document submitted by a person to the Secretary 
that contains all the information described in Appendix A of this part.
    Data means the output from a remote sensing instrument, regardless 
of level of processing.
    Days means working days if referring to a number equal to or less 
than ten, and calendar days if greater than ten.
    Ground sample distance or GSD refers to the common measurement for 
describing the spatial resolution of data created from most remote 
sensing instruments, typically measured in meters.
    In writing or written means written communication transmitted via 
email, forms submitted on the Secretary's website, and traditional 
mail.
    License means a license granted by the Secretary under the Act.
    Licensee means a person to whom the Secretary has granted a license 
under the Act.
    Material fact means any fact an applicant provides in the 
application (apart from its ODMSP plan), or any fact in Parts C or D of 
a license derived from information an applicant or licensee provides to 
the Secretary. Material facts include, but are not limited to, the 
description of all components of the system and the identity and 
description of the person.
    Memorandum of Understanding or MOU means the ``Memorandum of 
Understanding Among the Departments of Commerce, State, Defense, and 
Interior, and the Office of the Director of National Intelligence, 
Concerning the Licensing and Operations of Private Remote Sensing 
Satellite Systems,'' dated April 25, 2017, which remains in effect and 
is included in Appendix D of this part. In the event that any 
provisions of the MOU conflict with this part, this part shall govern.
    Modification means any change in the text of a license, whether 
requested by the licensee or required by the Secretary in accordance 
with the procedures in this part.
    Operate means to control the functioning of a remote sensing space 
system. If multiple persons manage various components of a remote 
sensing space system, the person with primary control over the 
functioning of the remote sensing instrument shall be deemed to operate 
the remote sensing space system.
    Person or private sector party means any entity or individual other 
than agencies or instrumentalities of the U.S. Government.
    Private remote sensing space system or system means a remote 
sensing space system in which the remote sensing instrument is not 
owned by an agency or instrumentality of the U.S. Government.
    Remote sensing means the collection and transmission of data about 
a sensed object by making use of the electromagnetic waves emitted, 
reflected, or diffracted by the sensed object. Sensing shall not be 
considered remote if the sensing instrument is physically attached to 
the primary sensed object and cannot be maneuvered to effectively sense 
any other object.
    Remote sensing instrument means a device that can perform remote 
sensing.
    Remote sensing space system means all components that support 
remote sensing to be or being conducted from an orbit of the Earth or 
another celestial body, including the remote sensing instrument(s), the 
(one or more) spacecraft upon which the remote sensing instrument(s) is 
(are) carried, facilities wherever located, and any other items that 
support remote sensing and data management, regardless of whether the 
component is owned or managed by the applicant or licensee.
    Secretary means the Secretary of Commerce, or his or her designee.
    Significant or substantial foreign agreement means any contract or 
legal arrangement with any foreign national, entity, or consortium 
involving foreign nations or entities, the execution of which will 
require the prior approval of a license modification.
    Subsidiary or affiliate means a person that is related to the 
applicant or licensee by shareholdings or other means of control.
    Unenhanced data means remote sensing signals or imagery products 
that are unprocessed or preprocessed.
    United States citizen means:
    (1) Any individual who is a citizen of the United States; and
    (2) Any corporation, partnership, joint venture, association, or 
other entity organized or existing under the laws of the United States 
or any State.

Subpart B--Risk Categories and General Interagency Consultation 
Processes


Sec.  960.5  Risk categories generally.

    (a) To promote the swift processing of applications and the 
appropriate level of continuing supervision, the Secretary, after 
consultation with appropriate agencies and subject to the interagency 
dispute resolution procedures in Section IV(B) of the MOU, shall group 
applications into categories. These categories shall reflect the 
relative risks to national security and international obligations and 
policies presented by the proposed operation of the system. 
Applications will be categorized as either low-risk or high-risk based 
on the Secretary's evaluation of the criteria in Sec.  960.6. The 
Secretary will follow the procedures in this subpart to revise these 
criteria.
    (b) Licenses will contain different conditions based on their 
categorization. The standard license conditions for low- and high-risk 
applications are found in subparts D and E, respectively. The Secretary 
will follow the procedures given in this subpart to revise the standard 
license conditions.
    (c) In carrying out this part, the Secretary and any agency with a 
role under this part shall take into consideration the following, among 
other appropriate considerations:
    (1) Technological changes in remote sensing;
    (2) Non-technological changes in the remote sensing space industry, 
such as to business practices;
    (3) Changes in the national security and international obligation 
and policy environment which affects the risks posed by such systems;
    (4) The relative costs to licensees and benefits to national 
security and international obligations and policies of license 
conditions;
    (5) Changes in the methods available to mitigate risks to national 
security and international obligations and policies;

[[Page 21291]]

    (6) The prevalence and capabilities of systems in other nations;
    (7) The remote sensing regulatory environment in other nations;
    (8) The potential for overlapping regulatory burdens imposed by 
other U.S. Government agencies; and
    (9) The commercial availability of comparable data from other 
space-based and non-space-based sources.


Sec.  960.6  Low-risk category criteria.

    When determining whether a system, as proposed in the license 
application, should be categorized as low-risk under the procedures at 
Sec.  960.10, the Secretary shall use the following criteria. The 
system must:
    (a) Be capable of operating only in one or both of the following 
electro-optical spectral ranges:
    (1) In a panchromatic band in the spectral range between 370-900 
nanometers, and with a maximum resolution of 15 meters GSD;
    (2) In no more than four multispectral bands in the spectral range 
between 370-1100 nanometers, and with a maximum resolution of 30 meters 
GSD;
    (b) Be capable of operating only using the following spectral 
bandwidths for multispectral systems:
    (1) Any bandwidth if the resolution is coarser than or equal to 30 
meters GSD;
    (2) Individual minimum spectral bandwidth(s) wider than 99 
nanometers if the resolution is finer than 30 meters GSD;
    (c) Encrypt tracking, telemetry, and control transmissions where 
the key length is at least 128 bits, if the system has propulsion;
    (d) Be incapable of imaging the same center point of an image on 
Earth more than once in 24 hours from one or more satellites in a 
constellation, including by slewing or redirecting the satellite or 
remote sensing instrument;
    (e) Be incapable of capturing video, defined as:
    (1) Imaging more than one frame every 10 seconds if the remote 
sensing instrument's resolution is finer than 30 meters GSD; or
    (2) Imaging more than 30 frames per second if the remote sensing 
instrument's resolution is coarser than or equal to 30 meters GSD;
    (f) Contain no more than three operational spacecraft;
    (g) Not, as described in its mission profile, disseminate data to 
the public within 12 hours of collection;
    (h) Not have any foreign involvement, meaning that:
    (1) No foreign nationals or entities have any ownership interest in 
the licensee; and
    (2) No foreign nationals or entities manage any components of the 
system;
    (i) Not, as described in its mission profile, perform night-time 
imaging, defined as imaging an area of the Earth's surface when the sun 
elevation is six degrees or more below the Earth's horizon relative to 
the imaged area with a resolution finer than 30 meters GSD;
    (j) Not, as described in its mission profile, perform non-Earth 
imaging, defined as conducting remote sensing of an artificial object 
in space.


Sec.  960.7  Process for revising low-risk category criteria.

    (a) At least every two years, the Secretary will consider, in 
consultation with the Secretaries of Defense and State, and determine 
whether to revise the criteria listed in Sec.  960.6.
    (b) When the Secretary determines that it is prudent to revise the 
criteria, the Secretary shall consult with the Secretaries of Defense 
and State on all matters affecting national security and international 
obligations and policies, and other U.S. Government agencies as deemed 
appropriate by the Secretary.
    (c) If the Secretary determines that the criteria listed in Sec.  
960.6 require revision, the Secretary shall promulgate revisions to 
those criteria following public notice and comment in the Federal 
Register.
    (d) If, at any point during the procedures in this section, any of 
the Secretaries objects to any determination, they may elevate the 
objection pursuant to the interagency dispute resolution procedures in 
Section IV(B) of the MOU.


Sec.  960.8  Process for revising standard license conditions.

    (a) At least every two years, the Secretary will consider, in 
consultation with the Secretaries of Defense and State, and determine 
whether to revise the standard license conditions provided in subparts 
D and E of this part for low- and high-risk systems, respectively.
    (b) When the Secretary determines that it is prudent to revise the 
standard license conditions, the Secretary shall consult with the 
Secretaries of Defense and State on all matters affecting national 
security and international obligations and policies, and other U.S. 
Government agencies as the Secretary deems appropriate.
    (c) The Secretaries of Defense and State will determine the 
standard license conditions necessary for low- and high-risk systems, 
consistent with the Act, to meet national security concerns and 
international obligations and policies of the United States, 
respectively. The Secretaries of Defense and State will notify the 
Secretary of such conditions.
    (d) The Secretary shall review the determinations under paragraph 
(c) of this section and, in consultation with the Secretaries of 
Defense and State, determine whether the concerns addressed therein 
cannot reasonably be mitigated by the United States.
    (e) If the Secretary determines that the standard license 
conditions in subparts D and E of this part require revision, the 
Secretary shall promulgate revisions to those conditions following 
public notice and comment in the Federal Register.
    (f) If, at any point during the procedures in this section, the 
Secretary, the Secretary of Defense, or the Secretary of State objects 
to any determination, they may elevate the objection pursuant to the 
interagency dispute resolution procedures in Section IV(B) of the MOU.
    (g) As the Secretary deems necessary, the Secretary may consult 
with the Secretary of the Interior to inform the Secretary's 
determination of whether to designate unenhanced data that the licensee 
must provide.
    (h) If the Secretary promulgates revised standard license 
conditions, those revised standard license conditions will not 
automatically apply to existing licenses. The Secretary shall notify 
licensees of any changes to standard license conditions resulting from 
the above procedures, and remind licensees that they may request that 
the Secretary approve a modification to their license if they would 
like an updated standard license condition to apply to them.

Subpart C--License Application Submission and Categorization


Sec.  960.9  Application submission.

    (a) Before submitting an application, a person may consult 
informally with the Secretary to discuss matters under this part, 
including whether a license is likely to be required for a system.
    (b) A person may submit an application for a license in accordance 
with the specific instructions found in Appendix B of this part. The 
application must contain fully accurate and responsive information, as 
described in Appendix A of this part.
    (c) Within five days of the submission, the Secretary, after 
consultation with the Secretaries of Defense and State and subject to 
the interagency dispute resolution procedures in Section IV(B) of the 
MOU, shall determine whether the submission is a complete application 
meeting the requirements of Appendix A of this part. If the submission 
is a complete application, the Secretary shall immediately notify the 
applicant in writing. If the submission is not a complete application, 
the Secretary

[[Page 21292]]

shall inform the applicant in writing of what additional information or 
clarification is required to complete the application.
    (d) If any information the applicant submitted becomes inaccurate 
or incomplete at any time after submission to the Secretary but before 
license grant or denial, the applicant must contact the Secretary and 
submit correct and updated information as instructed by the Secretary. 
The Secretary will determine whether the change is significant. If the 
Secretary makes that determination, the Secretary will notify the 
applicant that the revision constitutes a new application, and that the 
previous application is deemed to have been withdrawn.
    (e) Upon request by the applicant, the Secretary shall provide an 
update on the status of their application review.


Sec.  960.10  Application categorization.

    (a) Within five days of the Secretary's notification to the 
applicant under Sec.  960.9(c) that the application is complete, the 
Secretary shall make an initial determination of the appropriate 
category as follows:
    (1) If the Secretary determines that the application meets all the 
criteria in Sec.  960.6, the Secretary:
    (i) Shall categorize the application as low-risk; or
    (ii) May, in exceptional circumstances, if the Secretary determines 
the application presents a novel or not previously licensed capability 
with unforeseen risk to national security or compliance with 
international obligations or policies, categorize the application as 
high-risk.
    (2) If the Secretary determines that the application does not meet 
all the criteria in Sec.  960.6, the Secretary:
    (i) Shall categorize the application as high-risk; or
    (ii) May, if the Secretary determines the application presents a 
low risk to national security and international obligations and 
policies, categorize the application as low-risk.
    (b) If the Secretary makes an initial determination that an 
application is high-risk, the Secretary shall also make an initial 
determination of whether the application should be subject to specific 
license conditions under Sec.  960.18. The Secretary shall presume that 
the standard license conditions are sufficient, unless the application 
presents a novel or not previously licensed capability with unforeseen 
risk to national security or compliance with international obligations 
and policies.
    (c) The Secretary shall notify the Secretaries of Defense and State 
of the Secretary's initial determinations under paragraphs (a) and (b) 
of this section as applicable.
    (d) If the Secretary of Defense or the Secretary of State objects 
to the Secretary's initial determinations in paragraph (a) or (b) of 
this section within 10 days, and the Secretary disagrees with the 
grounds given for the objection, the Secretary shall immediately 
elevate the objection pursuant to the interagency dispute resolution 
procedures in Section IV(B) of the MOU.
    (e) Within 25 days of the Secretary's notification to the applicant 
under Sec.  960.9(c), the Secretary shall notify the applicant in 
writing of the category determination unless the category determination 
is subject to interagency dispute resolution in accordance with 
paragraph (d) of this section. This notification shall not be a final 
agency action.
    (f) If at any time during the review of the application the 
Secretary determines, in consultation with the Secretaries of Defense 
and State, that it is prudent to change the category determination of 
the application, the Secretary may do so, and shall notify the 
applicant. If the Secretary of Defense or the Secretary of State 
objects to the Secretary's decision to change the category 
determination, and the Secretary disagrees with the grounds given for 
the objection, the Secretary shall immediately elevate the objection 
pursuant to the interagency dispute resolution procedures in Section 
IV(B) of the MOU.

Subpart D--Low-Risk Category


Sec.  960.11  General.

    This subpart provides the procedures that the Secretary will follow 
when considering applications the Secretary determines to be low-risk 
and, if a license is granted, the license conditions and other terms 
that will be included in such licenses.


Sec.  960.12  License grant or denial.

    (a) Based on the Secretary's review of the application, the 
Secretary must determine whether the applicant will comply with the 
requirements of the Act, this part, and the license. The Secretary will 
presume that the applicant will comply, unless the Secretary has 
specific, credible evidence to the contrary. If the Secretary 
determines that the applicant will comply, the Secretary shall grant 
the license.
    (b) The Secretary shall make the determination in paragraph (a) of 
this section within 60 days of the notification under Sec.  960.9(c), 
and shall notify the applicant in writing whether the license is 
granted or denied.
    (c) If the Secretary has not notified the applicant whether the 
license is granted or denied within 60 days, the applicant may submit a 
request that the license be granted. Within three days of this request, 
the Secretary shall grant the license, unless the Secretary determines, 
with specific, credible evidence, that the applicant will not comply 
with the requirements of the Act, this part, or the license, or the 
Secretary and the applicant mutually agree to extend this review 
period.


Sec.  960.13  Standard license conditions.

    (a) All licenses granted under this subpart shall contain the 
following standard conditions, which cannot be waived. Each license 
shall specify that the licensee shall:
    (1) Comply with the Act, this part, the license, applicable 
domestic legal obligations, and the international obligations of the 
United States;
    (2) Operate the system in such manner as to preserve the national 
security of the United States and to observe international obligations 
and policies, as articulated in the other conditions included in this 
license;
    (3) Upon request, make available to the government of any country 
(including the United States) unenhanced data collected by the system 
concerning the territory under the jurisdiction of such government as 
soon as such data are available and on reasonable terms and conditions, 
unless doing so would be prohibited by law or license conditions;
    (4) Make the following unenhanced data available in accordance with 
51 U.S.C. 60141: None;
    (5) In order to make disposition of any satellites in space in a 
manner satisfactory to the President upon termination of operations 
under the license:
    (i) Comply with the latest version of the Orbital Debris Mitigation 
Standard Practices (ODMSP) issued by the U.S. Government; and
    (ii) Maintain at all times an up-to-date document that explains how 
the licensee will comply with the ODMSP;
    (6) Notify the Secretary in writing:
    (i) Of the launch and deployment of each system component, to 
include confirmation that the component matches the orbital parameters 
and data collection characteristics of the system, as described in Part 
D of the license, no later than five days after that event; and
    (ii) Of any deviation of an on-orbit component of the system from 
the orbital parameters and data collection characteristics of the 
system, as

[[Page 21293]]

described in Part D of the license, no later than five days after that 
event; and
    (7) Request and receive approval for a license modification before 
taking any action that would contradict a material fact in the license, 
including executing any significant or substantial foreign agreement.
    (b) All licenses granted under this subpart shall also contain the 
following standard conditions, which may be waived or adjusted 
following the procedures in paragraph (c) of this section. Each license 
shall specify, absent an approved request to waive or adjust any of the 
conditions in paragraphs (b)(1) through (7) of this section, that the 
licensee shall:
    (1) Refrain from disseminating data of the State of Israel (SOI) 
area at a resolution more detailed than two meters GSD. The SOI area 
includes the SOI and those territories occupied by the SOI in June 1967 
(the Gaza Strip, the Golan Heights, and the West Bank);
    (2) Certify that all material facts in the license remain accurate 
pursuant to the procedures in Sec.  960.15 no later than October 15th 
of each year;
    (3) Cooperate with compliance, monitoring, and enforcement 
authorities described in the Act and this part, and permit the 
Secretary to access, at all reasonable times, any component of the 
system for the purpose of ensuring compliance with the Act, the 
regulations, and the license;
    (4) Notify the Secretary in writing no later than five days after 
each disposal of an on-orbit component of the system;
    (5) Notify the Secretary in writing no later than five days after 
detection of an anomaly affecting the system, including, but not 
limited to, an anomaly resulting in loss of ability to operate an on-
orbit component of the system;
    (6) Notify the Secretary in writing no later than five days after 
the licensee's financial insolvency or dissolution; and
    (7) Protect the system and data therefrom by:
    (i) Implementing appropriate National Institute of Standards and 
Technology (NIST)-approved encryption, in accordance with the 
manufacturer's security policy, and wherein the key length is at least 
128 bits, for communications to and from the on-orbit components of the 
system related to tracking, telemetry, and control; and
    (ii) Implementing measures, consistent with industry best practice, 
that prevent unauthorized access to the system and identify any 
unauthorized access.
    (c) As part of the application, the applicant may request that any 
license condition listed in paragraph (b) of this section be waived or 
adjusted. The Secretary may approve the request to waive or adjust any 
such condition if, after consultation with the Secretaries of Defense 
and State as appropriate and subject to the interagency dispute 
resolution procedures in Section IV(B) of the MOU, the Secretary 
determines that:
    (1) The requirement is not applicable due to the nature of the 
applicant or the proposed system;
    (2) The applicant will achieve the goal in a different way; or
    (3) There is other good cause to waive or adjust the condition.
    (d) No other conditions shall be included in a license granted 
under this subpart, or imposed in such a license after the license has 
been issued except in accordance with the provisions of Sec.  960.14 or 
Sec.  960.26.


Sec.  960.14  Licensee-requested modifications.

    (a) The licensee may request in writing that the Secretary modify 
the license. Such requests should include the reason for the request 
and relevant supporting documentation.
    (b) If the Secretary believes that license conditions might be 
available that are less burdensome than those currently in a license, 
the Secretary shall notify the licensee and invite the licensee to 
request a modification.
    (c) The Secretary may approve or deny a modification request after 
consultation with the Secretaries of Defense and State as appropriate.
    (d) If the Secretary determines, after consultation with the 
Secretaries of Defense and State as appropriate, that the requested 
modification of a license would result in its re-categorization from 
low-risk to high-risk, the Secretary shall consult with the Secretaries 
of Defense or State, as appropriate, to determine whether approval of 
the request may require additional conditions. If so, the Secretary may 
also approve the modification request subject to additional conditions 
after notifying the licensee that approval would require such 
additional conditions, and giving the licensee an opportunity to 
withdraw or revise the request.
    (e) If, at any point during the procedures in paragraph (d) of this 
section, the Secretary, the Secretary of Defense, or the Secretary of 
State objects to any determination, they may elevate the objection 
pursuant to the interagency dispute resolution procedures in Section 
IV(B) of the MOU.
    (f) The Secretary shall inform the licensee of the decision under 
paragraph (c) of this section or a determination under paragraph (d) of 
this section within 30 days of the request, unless elevation is ongoing 
under paragraph (e) of this section.


Sec.  960.15  Routine compliance and monitoring.

    (a) By the date specified in the license, the licensee will certify 
in writing to the Secretary that each material fact in the license 
remains accurate.
    (b) If any material fact in the license is no longer accurate at 
the time the certification is due, the licensee must:
    (1) Provide all accurate material facts;
    (2) Explain the reason for any discrepancies between the terms in 
the license and the accurate material fact; and
    (3) Seek guidance from the Secretary on how to correct any errors, 
which may include requesting a license modification.


Sec.  960.16  Term of license.

    (a) The license term begins when the Secretary transmits the signed 
license to the licensee, regardless of the operational status of the 
system.
    (b) The license is valid until the Secretary confirms in writing 
that the license is terminated, because the Secretary has determined 
that one of the following has occurred:
    (1) The licensee has successfully disposed of, or has taken all 
actions necessary to successfully dispose of, all on-orbit components 
of the system in accordance with applicable license conditions, and is 
in compliance with all other requirements of the Act, this part, and 
the license;
    (2) The licensee never had system components on orbit and has 
requested to end the license term;
    (3) The license is terminated pursuant to Sec.  960.26; or
    (4) The licensee has executed one of the following transfers, 
subsequent to the Secretary's approval of such transfer:
    (i) Ownership of the system, or the operations thereof, to an 
agency or instrumentality of the U.S. Government;
    (ii) Operations to a person who:
    (A) Will not operate the system from the United States, or
    (B) Is not a United States citizen.

Subpart E--High-Risk Category


Sec.  960.17  General.

    This subpart provides the procedures that the Secretary will follow 
when considering applications the Secretary determines to be high-risk 
and, if a license is granted, the standard license conditions and other 
terms that will be included in such licenses, and the

[[Page 21294]]

process for determining any specific license conditions, if necessary.


Sec.  960.18  Specific license conditions.

    (a) If, based on the determination in Sec.  960.10, the Secretary 
concludes that specific license conditions may be necessary, the 
following process will apply.
    (b) The Secretaries of Defense and State, after consulting with any 
other U.S. Government agencies they deem appropriate, will determine 
whether any specific license conditions are necessary (in addition to 
the standard license conditions in Sec.  960.20) to meet national 
security concerns and international obligations and policies of the 
United States regarding that application. The Secretaries of Defense 
and State will notify the Secretary of any such conditions.
    (c) The Secretary shall review the notifications under paragraph 
(b) of this section and aim to craft the least burdensome specific 
license conditions possible by:
    (1) Determining, in consultation with the Secretaries of Defense 
and State as appropriate, whether the concerns addressed therein can 
reasonably be mitigated by the U.S. Government; and
    (2) Determining, in consultation with the applicant, whether the 
concerns addressed therein can reasonably be mitigated by the 
applicant.
    (d) If, at any point during the above procedures, the Secretary, 
the Secretary of Defense, or the Secretary of State objects to any 
determination, they may elevate the objection pursuant to the 
interagency dispute resolution procedures in Section IV(B) of the MOU.


Sec.  960.19  License grant or denial.

    (a) Based on the Secretary's review of the application, the 
Secretary must determine whether the applicant will comply with the 
requirements of the Act, this part, and the license. The Secretary will 
presume that the applicant will comply, unless the Secretary has 
specific, credible evidence to the contrary. If the Secretary 
determines that the applicant will comply, the Secretary shall grant 
the license.
    (b) The Secretary shall make the above determination within 90 days 
of the notification under Sec.  960.9(c), and shall notify the 
applicant in writing whether the license is granted or denied.
    (c) If the Secretary has not notified the applicant whether the 
license is granted or denied within 90 days, the applicant may submit a 
request that the license be granted. Within 10 days of this request, 
the Secretary shall either:
    (1) Grant the license unless the Secretary can determine, with 
specific credible evidence, that the applicant will not comply with the 
requirements of the Act, this part, or the license; or
    (2) Notify the applicant in writing of any pending issues and of 
specific actions required to resolve them, and grant or deny the 
application within 60 days of that notification, unless the Secretary 
and the applicant mutually agree to extend this review period.


Sec.  960.20  Standard license conditions.

    (a) Any license granted under this subpart shall contain the 
conditions determined through the process in Sec.  960.18, if 
applicable, as well as the standard conditions in this section.
    (b) All licenses granted under this subpart shall contain the 
following standard conditions, which cannot be waived. Each license 
shall specify that the licensee shall:
    (1) Comply with the Act, this part, and the license, applicable 
domestic legal obligations, and the international obligations of the 
United States;
    (2) Operate the system in such manner as to preserve the national 
security of the United States and to observe international obligations 
and policies, as articulated in the other conditions included in this 
license;
    (3) Upon request, make available to the government of any country 
(including the United States) unenhanced data collected by the system 
concerning the territory under the jurisdiction of such government as 
soon as such data are available and on reasonable terms and conditions, 
unless doing so would be prohibited by law or license conditions;
    (4) Make the following unenhanced data available in accordance with 
51 U.S.C. 60141: None;
    (5) In order to make disposition of any satellites in space in a 
manner satisfactory to the President upon termination of operations 
under the license:
    (i) Comply with the latest version of the Orbital Debris Mitigation 
Standard Practices (ODMSP) issued by the U.S. Government; and
    (ii) Maintain at all times an up-to-date document that explains how 
the licensee will comply with the ODMSP;
    (6) Notify the Secretary in writing:
    (i) Of the launch and deployment of each system component, to 
include confirmation that the component matches the orbital parameters 
and data collection characteristics of the system, as described in 
subpart D of this part of the license, no later than five days after 
that event; and
    (ii) Of any deviation of an on-orbit component of the system from 
the orbital parameters and data collection characteristics of the 
system, as described in subpart D of this part of the license, no later 
than five days after that event; and
    (7) Request and receive approval for a license modification before 
taking any action that would contradict a material fact in the license, 
including executing any significant or substantial foreign agreement.
    (c) All licenses granted under this subpart shall also contain the 
following standard conditions, which may be waived or adjusted 
following the procedures in paragraph (d) of this section. Each license 
shall specify, absent an approved request to waive or adjust any of the 
conditions in paragraphs (c)(1) through (12) of this section, that the 
licensee shall:
    (1) Refrain from disseminating data of the State of Israel (SOI) 
area at a resolution more detailed than two meters GSD. The SOI area 
includes the SOI and those territories occupied by the SOI in June 1967 
(the Gaza Strip, the Golan Heights, and the West Bank);
    (2) Certify that all material facts in the license remain accurate 
pursuant to the procedures in Sec.  960.23 no later than April 15th and 
October 15th of each year;
    (3) Cooperate with compliance, monitoring, and enforcement 
authorities described in the Act and this part, and permit the 
Secretary to access, at all reasonable times, any component of the 
system for the purpose of ensuring compliance with the Act, the 
regulations, and the license;
    (4) Notify the Secretary in writing no later than five days after 
each disposal of an on-orbit component of the system;
    (5) Notify the Secretary in writing no later than five days after 
detection of an anomaly affecting the system, including, but not 
limited to, an anomaly resulting in loss of ability to operate an on-
orbit component of the system;
    (6) Notify the Secretary in writing no later than five days after 
the licensee's financial insolvency or dissolution;
    (7) Protect the system and data therefrom by:
    (i) Implementing appropriate National Institute of Standards and 
Technology (NIST)-approved and validated encryption, in accordance with 
the manufacturer's security policy, and wherein the key length is at 
least 256 bits, for communications to and from the on-orbit components 
of the system related to tracking, telemetry, and control, and data 
transmissions throughout the system;
    (ii) Implementing measures, consistent with industry best practice, 
that prevent unauthorized access to the

[[Page 21295]]

system and identify any unauthorized access; and
    (iii) Maintaining a document which describes the means by which the 
licensee will comply with the conditions in paragraphs (c)(7)(i) and 
(ii) of this section, using the latest version of the NIST 
Cybersecurity Framework;
    (8) Comply with limited operations directives issued by the 
Secretary, in accordance with a request issued by the Secretary of 
Defense or the Secretary of State pursuant to the procedures in Section 
IV(D) of the MOU, that require licensees to temporarily limit data 
collection and/or distribution in exceptional circumstances to meet 
significant concerns about national security and international policy; 
and
    (i) Be able to comply with limited operations directives at all 
times;
    (ii) Provide and continually update the Secretary with a point of 
contact and an alternate point of contact for limited operations 
directives;
    (9) If the licensee conducts remote sensing of an artificial object 
in space (``collects NEI data''), the licensee shall:
    (i) Use only the 370-900 nanometers portion of the electromagnetic 
spectrum while collecting NEI data;
    (ii) If the licensee has received written permission to collect NEI 
data from the operator of the sensed object, the licensee shall request 
approval from the Secretary to collect that NEI data at least 30 days 
prior to the planned collection and shall conduct the remote sensing 
only if the Secretary approves the request. The request shall include 
an identification of the object; confirmation that the owner and 
operator have notified applicable manufacturer(s); the orbital location 
of the object; the licensee's proposed orbital maneuver plan during the 
remote sensing of the object; dates of the remote sensing; and the 
distance between the remote sensing instrument and the object.
    (iii) If the licensee has not received permission to collect NEI 
data from the operator of the sensed object, the licensee shall not 
disseminate or retain in an archive:
    (A) NEI data at a resolution finer than 0.5 meters;
    (B) NEI data in which the object fills more than 3x3 pixels of the 
remote sensing instrument's focal plane in two orthogonal axes 
simultaneously;
    (C) Metadata associated with such NEI data, such as time, position, 
and altitude of the licensee's remote sensing instrument; or
    (D) NEI data of an artificial object in space that has not been 
successfully correlated with the space tracking catalog found at space-track.org.
    (10) If the licensee collects night-time imaging data (``NTI 
data''), meaning data of an area of the Earth's surface when the sun's 
elevation is six degrees or more below the Earth's horizon relative to 
that area using any remote sensing technique other than synthetic 
aperture radar, the licensee shall:
    (i) Use only the 370-1,100 nanometers portion of the 
electromagnetic spectrum while collecting NTI data;
    (ii) Not disseminate NTI data at a resolution finer than 30 meters 
GSD;
    (iii) Not disseminate or retain in an archive, at any resolution, 
NTI data of the sites identified in the most recent list of NTI 
Geographic Exclusion Areas provided by the Secretary; and
    (iv) Not disseminate the list of NTI Geographic Exclusion Areas or 
the information contained therein (by restating, paraphrasing, or 
incorporating it in a new form) to any person except its employees and 
contractors to carry out their job-related duties.
    (11) If the licensee collects data using the shortwave infrared 
(1,200-3,000 nanometers) portion of the electromagnetic spectrum 
(``SWIR data''), the licensee shall not:
    (i) Disseminate SWIR data at a resolution finer than 3.7 meters 
GSD;
    (ii) Disseminate or retain in an archive, at any resolution, SWIR 
data of the sites identified in the most recent list of SWIR Geographic 
Exclusion Areas provided by the Secretary; or
    (iii) Disseminate the list of SWIR Geographic Exclusion Areas or 
the information contained therein (by restating, paraphrasing, or 
incorporating it in a new form) to any person except its employees and 
contractors to carry out their job-related duties.
    (12) If the licensee collects data using a synthetic aperture radar 
(``SAR data''), the licensee shall not:
    (i) Disseminate SAR data, associated single-loop complex data, or 
any complex valued products, at a resolution finer than 0.25 meters 
impulse response ground plane quality;
    (ii) Disseminate SAR phase history data, at any resolution;
    (iii) Transmit SAR data to any ground station located outside the 
United States;
    (iv) Utilize any SAR technology, data processing algorithms, or 
radar signatures developed by the licensee for the U.S. Government, in 
whole or in part, without the prior written approval of the responsible 
U.S. Government agency; or
    (v) Receive SAR radar pulses from remote sensing instruments not 
listed in this license.
    (d) As part of the application, the applicant may request that any 
license condition listed in paragraph (c) of this section be waived or 
adjusted. The Secretary may approve the request to waive or adjust any 
such condition if, after consultation with the Secretaries of Defense 
and State as appropriate and subject to the interagency dispute 
resolution procedures in Section IV(B) of the MOU, the Secretary 
determines that:
    (1) The requirement is not applicable due to the nature of the 
applicant or the proposed system;
    (2) The applicant will achieve the goal in a different way; or
    (3) There is other good cause to waive or adjust the condition.


Sec.  960.21  United States Government-required license modification; 
reimbursement.

    If, after a license is granted under this subpart, the Secretary of 
Defense determines that a technical modification to a licensed system 
is necessary to meet a national security concern, the following 
procedure will apply:
    (a) The Secretary of Defense will notify the Secretary of the 
determination. This determination shall not be delegated below the 
Secretary of Defense or acting Secretary.
    (b) The Secretary will consult with the licensee and with other 
U.S. Government agencies as appropriate to determine whether the 
technical modifications will cause the licensee to incur additional 
costs, or to be unable to recover past development costs (including the 
cost of capital, but not including anticipated profits nor costs 
ordinarily associated with doing business abroad).
    (c) If the Secretary determines that the licensee will incur 
additional costs under paragraph (b) of this section, the Secretary may 
require the U.S. Government agency or agencies who determined these 
national security concerns to reimburse the licensee for those 
additional or unrecoverable costs.
    (d) The Secretary shall modify the license to reflect the necessary 
technical modifications and coordinate reimbursement, if applicable.
    (e) If, at any point during the above procedures, the Secretary, 
the Secretary of Defense, or the Secretary of State objects to any 
determination, they may elevate the objection pursuant to the 
interagency dispute resolution procedures in Section IV(B) of the MOU.


Sec.  960.22  Licensee-requested modifications.

    (a) The licensee may request in writing that the Secretary modify 
the license. Such requests should include the reason for the request 
and relevant supporting documentation.

[[Page 21296]]

    (b) If the Secretary believes that license conditions might be 
available that are less burdensome than those currently in a license, 
the Secretary shall notify the licensee and invite the licensee to 
request a modification.
    (c) The Secretary may approve or deny the modification request 
after consultation with the Secretaries of Defense and State as 
appropriate, or consult as appropriate with the Secretaries of Defense 
or State to determine whether approval of the request may require 
additional conditions. If so, the Secretary may approve the 
modification request subject to additional conditions after notifying 
the licensee that approval would require such additional conditions, 
and giving the licensee an opportunity to withdraw or revise the 
request.
    (d) If, at any point during the procedures in paragraph (c) of this 
section, the Secretary, the Secretary of Defense, or the Secretary of 
State objects to any determination, they may elevate the objection 
pursuant to the interagency dispute resolution procedures in Section 
IV(B) of the MOU.
    (e) The Secretary shall inform the licensee of the decision under 
paragraph (c) of this section within 30 days of the request, unless 
elevation is ongoing under paragraph (d) of this section.


Sec.  960.23  Routine compliance and monitoring.

    (a) By the date(s) specified in the license, the licensee will 
certify in writing to the Secretary that each material fact in the 
license remains accurate.
    (b) If any material fact in the license is no longer accurate at 
the time the certification is due, the licensee must:
    (1) Provide all accurate material facts;
    (2) Explain any discrepancies between the terms in the license and 
the accurate material fact; and
    (3) Seek guidance from the Secretary on how to correct any errors, 
which may include requesting a license modification.


Sec.  960.24  Term of license.

    (a) The license term begins when the Secretary transmits the signed 
license to the licensee, regardless of the operational status of the 
system.
    (b) The license is valid until the Secretary confirms in writing 
that the license is terminated, because the Secretary has determined 
that one of the following has occurred:
    (1) The licensee has successfully disposed of, or has taken all 
actions necessary to successfully dispose of, all on-orbit components 
of the system in accordance with applicable license conditions, and is 
in compliance with all other requirements of the Act, this part, and 
the license;
    (2) The licensee never had system components on orbit and has 
requested to end the license term;
    (3) The license is terminated pursuant to Sec.  960.26; or
    (4) The licensee has executed one of the following transfers, 
subsequent to the Secretary's approval of such transfer:
    (i) Ownership of the system, or the operations thereof, to an 
agency or instrumentality of the U.S. Government;
    (ii) Operations to a person who:
    (A) Will not operate the system from the United States, or
    (B) Is not a United States citizen.

Subpart F--Prohibitions and Enforcement


Sec.  960.25  Prohibitions.

    Any person who operates a system from the United States and any 
person who is a United States citizen shall not, directly or through a 
subsidiary or affiliate:
    (a) Operate a system without a current, valid license for that 
system;
    (b) Violate the Act, this part, or any license condition;
    (c) Submit false information, interfere with, mislead, obstruct, or 
otherwise frustrate the Secretary's actions and responsibilities under 
this part in any form at any time, including in the application, during 
application review, during the license term, in any compliance and 
monitoring activities, or in enforcement activities; or
    (d) Fail to obtain approval for a license modification before 
taking any action that would contradict a material fact in the license.


Sec.  960.26  Investigations and enforcement.

    (a) The Secretary may investigate, provide penalties for 
noncompliance, and prevent future noncompliance, by using the 
authorities specified at 51 U.S.C. 60123(a).
    (b) When the Secretary undertakes administrative enforcement 
proceedings as authorized by 51 U.S.C. 60123(a)(3) and (4), the parties 
will follow the procedures provided at 15 CFR part 904.

Subpart G--Appeals Regarding Licensing Decisions


Sec.  960.27  Grounds for adjudication by the Secretary.

    (a) In accordance with the procedures in this subpart, a person may 
appeal the following adverse actions for adjudication by the Secretary:
    (1) The denial of a license;
    (2) The Secretary's failure to make a determination on a license 
grant or denial within the timelines provided in this part;
    (3) The imposition of a license condition; and
    (4) The denial of a requested license modification.
    (b) The only acceptable grounds for appeal of the above actions are 
as follows:
    (1) The Secretary's action was arbitrary, capricious, or contrary 
to law; or
    (2) The action was based on a clear factual error.
    (c) No appeal is available to the extent that there is involved the 
conduct of military or foreign affairs functions.


Sec.  960.28  Administrative appeal procedures.

    (a) A person wishing to appeal an action specified at Sec.  
960.27(a) may do so within 14 days of the action by submitting a 
written request to the Secretary.
    (b) The request must include a detailed explanation of the reasons 
for the appeal, including any claims of factual or legal error.
    (c) Upon receipt of a request under paragraph (a) of this section, 
the Secretary shall review the request to certify that it meets the 
requirements of this subpart and chapter 7 of title 5 of the United 
States Code. If it does, the Secretary shall coordinate with the 
appellant to schedule a hearing before a hearing officer designated by 
the Secretary. If the Secretary does not certify the request, the 
Secretary shall notify the person in writing that no appeal is 
available, and this notification shall constitute a final agency 
action.
    (d) The hearing shall be held in a timely manner. It shall provide 
the appellant and the Secretary an opportunity to present evidence and 
arguments.
    (e) Hearings may be closed to the public, and other actions taken 
as the Secretary deems necessary, to prevent the disclosure of any 
information required by law to be protected from disclosure.
    (f) At the close of the hearing, the hearing officer shall 
recommend a decision to the Secretary addressing all factual and legal 
arguments.
    (g) Based on the record of the hearing and the recommendation of 
the hearing officer, the Secretary shall make a decision adopting, 
rejecting, or modifying the recommendation of the hearing officer. This 
decision constitutes a final agency action, and is subject to judicial 
review under chapter 7 of title 5 of the United States Code.

[[Page 21297]]

Appendix A to Part 960--Application Information Required

    To apply for a license to operate a remote sensing space system 
under 51 U.S.C. 60101 et seq. and 15 CFR part 960, you must provide:
    1. Material Facts: Fully accurate and responsive information to 
the following prompts under ``Description of Licensee'' and 
``Description of System.'' If a question is not applicable, write 
``N/A'' and explain, if necessary; and
    2. Orbital Debris Mitigation Standard Practices (ODMSP) Plan: A 
document that explains how you will comply with the latest version 
of the ODMSP issued by the U.S. Government.
    3. Your response to each prompt below constitutes material 
facts. If any information you submit later becomes inaccurate or 
incomplete before a license grant or denial, you must promptly 
contact the Secretary and submit correct and updated information as 
instructed by the Secretary. Please see 15 CFR part 960 subpart C 
for additional details.

Description of Licensee

    1. General Licensee Information
    a. Name:
    b. Location and address of applicant:
    c. Applicant contact information (for example, general corporate 
or university contact information):
    d. Contact information for a specific individual to serve as the 
point of contact with Commerce:
    e. Place of incorporation, if outside the United States:
    2. Ownership interests
    a. Domestic entities or individuals with an ownership interest 
in the Licensee totaling more than 50 percent:
    b. Foreign entities or individuals with any ownership interest 
in the Licensee:
    3. Identity of any subsidiaries and affiliates playing a role in 
the operation of the System, including a brief description of that 
role:
    4. Any foreign nations who may license the system:

Description of System

    1. General System Information
    a. Name of system:
    b. Brief mission description:
    2. Remote Sensing Instrument(s):
    a. Type(s) of sensor(s), including the spectral range(s) in 
nanometers in which the sensor is capable of operating (i.e., 370-
800; Optical, Radar, Lidar, X-Ray, Multispectral, Hyperspectral, 
combination of these, Other):
    b. Spectral bandwidth capability or capabilities in nanometers 
(i.e., 400 nanometer-wide band; four 20-nanometer-wide bands; etc.):
    c. If sensor is multispectral, number of spectral bands:
    d. Spatial resolution (GSD, Impulse Response, Other):
    e. Number of sensors per satellite:
    f. Whether the mission profile involves performing night-time 
imaging, defined as imaging an area of the Earth's surface when the 
sun's elevation is six degrees or more below the Earth's horizon 
relative to the imaged area with a resolution finer than 30 meters 
GSD:
    g. Whether the mission profile involves performing non-Earth 
imaging, defined as conducting remote sensing of an artificial 
object in space:
    h. Whether the system is capable of capturing video, defined as 
either:
    A. Imaging at least one frame every 10 seconds if the remote 
sensing instrument's resolution is finer than 30 meters GSD; or
    B. Imaging at least 30 frames per second if the remote sensing 
instrument's resolution is coarser than or equal to 30 meters GSD.
    i. Minimum time between capability of imaging the same center 
point of an image on Earth more than once, from one or more 
satellites in a constellation:
    j. Minimum and average time between when data are collected and 
disseminated to the public:
    k. If any entity or individual other than the Licensee will own 
or control any remote sensing instrument in the System:
    A. Identity and contact information of that entity or 
individual:
    B. Relationship to Licensee (i.e., operating under Licensee's 
instructions under a contract):
    3. Spacecraft Upon Which the Remote Sensing Instrument(s) is 
(are) Carried
    a. Description
    A. Estimated launch date(s) in calendar quarter:
    B. Number of spacecraft (system total and maximum in-orbit at 
one time):
    b. Altitude range in kilometers:
    c. Inclination range in degrees:
    d. Propulsion (yes/no):
    e. If any entity or individual other than the Licensee will own, 
control, or manage any spacecraft in the System:
    A. Identity and contact information of that entity or 
individual:
    B. Whether that entity or individual is a U.S. citizen:
    C. Relationship to Licensee (i.e., operating under Licensee's 
instructions under a contract):
    4. Ground Components
    a. Location of Mission Control Center(s):
    b. Location of Ground Stations (without transmission access), 
wherever located:
    c. Location of Ground Access Facilities (with direct downlink or 
transmission access), wherever located:
    d. Data Storage and Archive Locations (including description and 
physical location of physical servers, cloud storage, etc.):
    e. Description of encryption for telemetry tracking and control 
and data transmissions, if any (noting the applicable data 
protection standard license conditions for low- and high-risk 
systems):
    f. If any entity or individual other than the Licensee will own, 
control, or manage any ground components of the System:
    A. Identity and contact information of that entity or 
individual:
    B. Whether that entity or individual is a U.S. citizen:
    C. Relationship to Licensee (i.e., operating under Licensee's 
instructions under a contract):

Requests for Standard License Condition Waivers or Adjustments

    Standard license conditions are listed at 15 CFR 960.13 and 
960.20 for low- and high-risk systems, respectively. If requesting 
that any of these be waived or adjusted, please identify the 
specific standard license condition and explain why:
    1. The requirement is not applicable due to the nature of the 
applicant or the proposed system;
    2. The applicant will achieve the goal in a different way; or
    3. There is other good cause to waive or adjust the condition.

Appendix B to Part 960--Application Submission Instructions

    A person may apply to operate a private remote sensing space 
system by submitting the information to the Secretary as described 
in Appendix A of this part. This information can be submitted in one 
of three ways:
    1. Complete the fillable form at www.nesdis.noaa.gov/crsra.
    2. Respond to the prompts in Appendix A of this part and email 
your responses to [email protected].
    3. Respond to the prompts in Appendix A of this part and mail 
your responses to: Commercial Remote Sensing Regulatory Affairs, 
1335 East-West Highway SSMC-1/G-101, Silver Spring, MD 20910.

Appendix C to Part 960--License Template

Part A: Determination and License Grant

    1. The Secretary determines that [licensee name], as described 
in Part C, will comply with the requirements of the Act, the 
regulations at 15 CFR part 960, and the conditions in this license.
    2. Accordingly, the Secretary hereby grants [licensee name] 
(hereinafter ``Licensee''), as described in Part C, this license to 
operate [system name] (hereinafter ``the System''), as described in 
Part D, subject to the terms and conditions of this license. This 
license is valid until its term ends, in accordance with 15 CFR 
[960.16 or 960.24]. The Licensee must request and receive approval 
for a license modification before taking any action that would 
contradict a material fact listed in Part C or D of this license.
    3. The Secretary makes this determination, and grants this 
license, under the Secretary's authority in 51 U.S.C. 60123 and 
regulations at 15 CFR part 960. This license does not authorize the 
System's use of spectrum for radio communications or the conduct of 
any non-remote sensing operations that are proposed to be undertaken 
by the Licensee. This license is not alienable and creates no 
property right in the Licensee.

Part B: License Conditions

    The Licensee must, at all times:
    [Depending upon the categorization of the application as low- or 
high-risk, Commerce will insert the applicable standard license 
conditions, found either at Sec. Sec.  960.13 or 960.20, and for a 
high-risk application, any applicable specific conditions resulting 
from the process in Sec.  960.18, here.]

Part C: Description of Licensee

    Every term below constitutes a material fact. You must request 
and receive approval of a license modification before taking any 
action that would contradict a material fact.

[[Page 21298]]

    1. General Licensee Information
    a. Name:
    b. Location and address of licensee:
    c. Licensee contact information (for example, general corporate 
or university contact information):
    d. Contact information for a specific individual to serve as the 
point of contact with Commerce:
    e. Place of incorporation, if outside the United States:
    2. Ownership Interests
    a. Domestic entities or individuals with an ownership interest 
in the Licensee totaling more than 50 percent:
    b. Foreign entities or individuals with any ownership interest 
in the Licensee:
    3. Identity of any subsidiaries and affiliates playing a role in 
the operation of the System, including a brief description of that 
role:
    4. Point of contact for limited operations directives, if other 
than the point of contact listed above [note: do not include in low-
risk licenses]:
    5. Any foreign nations who may license the system:

Part D: Description of System

    Every term below constitutes a material fact. You must request 
and receive approval of a license modification before taking any 
action that would contradict a material fact.
    1. General System Information
    a. Name of system:
    b. Brief mission description:
    2. Remote Sensing Instrument(s):
    a. Type(s) of sensor(s), including the spectral range(s) in 
nanometers in which the sensor is capable of operating (i.e., 370-
800; Optical, Radar, Lidar, X-Ray, Hyperspectral, Video, combination 
of these, other):
    b. Spectral bandwidth capability or capabilities in nanometers:
    c. If sensor is multispectral, number of spectral bands:
    d. Spatial resolution (GSD, Impulse Response, Other):
    e. Number of sensors per satellite:
    f. Whether the mission profile involves performing night-time 
imaging, defined as imaging an area of the Earth's surface when the 
sun's elevation is six degrees or more below the Earth's horizon 
relative to the imaged area with a resolution finer than 30 meters 
GSD:
    g. Whether the mission profile involves performing non-Earth 
imaging, defined as conducting remote sensing of an artificial 
object in space:
    h. Whether the system is capable of capturing video, defined as 
either:
    A. Imaging at least one frame every 10 seconds if the remote 
sensing instrument's resolution is finer than 30 meters GSD; or
    B. Imaging at least 30 frames per second if the remote sensing 
instrument's resolution is coarser than or equal to 30 meters GSD:
    i. Minimum time between capability of imaging the same center 
point of an image on Earth more than once, from one or more 
satellites in a constellation:
    j. Minimum and average time between when data are collected and 
disseminated to the public:
    k. If any entity or individual other than the Licensee will own 
or control any remote sensing instrument in the System:
    A. Identity and contact information of that entity or 
individual:
    B. Relationship to Licensee (i.e., operating under Licensee's 
instructions under a contract):
    3. Spacecraft Upon Which Remote Sensing Instrument(s) is (are) 
Carried
    a. Description
    A. Estimated launch date(s) in calendar quarter:
    B. Number of spacecraft (system total and maximum in-orbit at 
one time):
    b. Altitude range in kilometers:
    c. Inclination range in degrees:
    d. Propulsion (yes/no):
    e. If any entity or individual other than the Licensee will own 
or control any spacecraft in the System:
    A. Identity and contact information of that entity or 
individual:
    B. Whether that entity or individual is a U.S. citizen:
    C. Relationship to Licensee (i.e., operating under Licensee's 
instructions under a contract):
    4. Ground Components
    a. Location of Mission Control Center(s):
    b. Location of Ground Stations (without transmission access), 
wherever located:
    c. Location of Ground Access Facilities (with direct downlink or 
transmission access), wherever located:
    d. Data Storage and Archive Locations (including description and 
physical location of physical servers, cloud storage, etc.):
    e. Description of encryption for telemetry tracking and control 
and data transmissions, if any (noting the applicable data 
protection standard license conditions for low- and high-risk 
systems):
    f. If any entity or individual other than the Licensee will own 
or control any ground components of the System:
    A. Identity and contact information of that entity or 
individual:
    B. Whether that entity or individual is a U.S. citizen:
    C. Relationship to Licensee (i.e., operating under Licensee's 
instructions under a contract):

Appendix D to Part 960--Memorandum of Understanding

    Memorandum of Understanding Among the Departments of Commerce, 
State, Defense, and Interior, and the Office of the Director of 
National Intelligence, Concerning the Licensing and Operations of 
Private Remote Sensing Satellite Systems. April 25, 2017.

I. Authorities and Roles

    This Memorandum of Understanding (MOU) is undertaken pursuant to 
the National and Commercial Space Programs Act, 51 U.S.C, 60101 et 
seq. (``the Act''), 15 CFR part 960, National Security Presidential 
Directive 27 (NSPD-27), and Presidential Policy Directive-4 PPD-4) 
(``applicable directives''), or to any renewal of, or successor to, 
the Act and the applicable directives.
    The principal Parties to this MOU are the Department of Commerce 
(DOC), Department of State (DOS), Department of Defense (DOD), and 
Department of the Interior (DOI). The Office of the Director of 
National Intelligence (ODNI) and the Joint Chiefs of Staff (JCS) 
provide supporting advice pertaining to their areas of expertise. 
The Secretary of commerce is responsible for administering the 
licensing of private remote sensing satellite systems pursuant to 
the Act and applicable directives, and fulfills this responsibility 
through the National Oceanic and Atmospheric Administration (NOAA). 
For remote sensing issues, the Act also grants the authority to the 
Secretary of State to determine conditions necessary to meet 
international obligations and foreign policies, and to the Secretary 
of Defense to determine conditions necessary to meet the national 
security concerns raised by any remote sensing license application 
submitted pursuant to the Act and applicable directives, or to any 
amendment, renewal, or successor thereto. In addition, pursuant to 
this MOU, NOAA shall also consult with the Director of National 
Intelligence (DNI) for the views of the Intelligence Community (IC) 
and with the Chairman of the Joint Chiefs of Staff for the views of 
the DOD joint operational community.

II. Purpose

    The purpose of this MOU is to establish the interagency 
consultation process for adjudicating remote sensing licensing 
actions, and the consultation process for the interruption of normal 
commercial operations pursuant to the Act and applicable directives.

III. Policy

    In consultation with affected departments and agencies, 
including the DNI and JCS, the Secretary of commerce will impose 
constraints on private remote sensing systems when necessary to meet 
the international obligations, foreign policy concerns, and/or 
national security concerns of the United States, and shall accord 
with the determinations of the Secretary of State and the Secretary 
of Defense, and with applicable laws and directives. Procedures for 
implementing this policy are established below, with each Party to 
this MOU separately establishing and documenting its internal 
timelines and decision authorities below the Cabinet level.

IV. Procedures for Department/Agency Review

A. Consultation During Review of Licensing Actions

    Pursuant to the Act and applicable directives, or to any renewal 
thereof or successor thereto, the Secretary of Commerce shall review 
any application and make a determination within 120 days of receipt 
of such application. If final action has not occurred within such 
time, then the Secretary shall inform the applicant of any pending 
issues and of actions required to resolve them. The DOC will provide 
copies of requests for licensing actions to DOS, DOD, DOI, ODNl, and 
JCS within 3 working days. Each of these entities will inform DOC, 
through NOAA, of the office of primary responsibility, including 
primary and backup points of contact, for license action 
coordination.
    (1) DOC will defer its decision on licensing requests until the 
other reviewing agencies

[[Page 21299]]

have had a reasonable time to review them, as provided in this 
section. Within 10 working days of receipt, if DOS, DOD, DOI, ODNI, 
or JCS wants more information or time to review, then it shall 
notify, in writing, DOC/NOAA (a) of any additional information that 
it believes is necessary to properly evaluate the licensing action, 
or (b) of the additional time, not to exceed 10 working days, 
necessary to complete the review. This notification shall state the 
specific reasons why the additional information is sought, or why 
more time is needed.
    (2) After receiving a complete license package, including any 
additional information that was requested as described above, DOS, 
DOD, DOI, ODNI and JCS will provide their final recommendations on 
the license package within 30 days, or otherwise may request from 
DOC/NOAA additional time necessary to provide a recommendation. If 
DOS determines that imposition of conditions on the actions being 
reviewed is necessary to meet the international obligations and 
foreign policies of the United States, or DOD determines that 
imposition of conditions are necessary to address the national 
security concerns of the United States, the MOU Party identifying 
the concern will promptly notify, in writing, DOC/NOAA and those 
departments and agencies responsible for the management of 
operational land imaging space capabilities of the United States. 
Such notification shall: (a) Describe the specific national security 
interests, or the specific international obligations or foreign 
policies at risk, if the applicant's system is approved as proposed; 
(b) set forth the specific basis for the conclusion that operation 
of the applicant's system as proposed will not preserve the 
identified national security interests or the identified 
international obligations or foreign policies; and (c) either 
specify the additional conditions that will be necessary to preserve 
the relevant U.S. interests, or set forth in detail why denial is 
required to preserve such interests. All notifications under this 
paragraph must be in writing.

B. Interagency Dispute Resolution for Licensing Actions

    (1) Committees. The following committees are established, 
described here from the lowest level to the highest, to adjudicate 
disagreements concerning proposed commercial remote sensing system 
licenses.
    (a) Operating Committee on Private Remote Sensing Space Systems. 
An Operating Committee on Private Remote Sensing Space Systems 
(RSOC) is established. The Under Secretary of Commerce for Oceans 
and Atmosphere and NOAA Administrator shall appoint its Chair. Its 
other principal members shall be representatives of DOS, DOD, and 
DOI, or their subordinate agencies, who along with their subject 
matter experts, can speak on behalf of their department or agency. 
Representatives of the ODNI and the JCS shall participate as 
supporting members to provide independent advice pertaining to their 
areas of expertise. The RSOC may invite representatives of United 
States Government departments or agencies that are not normally 
represented in the RSOC to participate in the activities of that 
Committee when matters of interest to such departments or agencies 
are under consideration.
    (b) Advisory Committee on Private Remote Sensing Space Systems. 
An Advisory Committee on Private Remote Sensing Space Systems 
(ACPRS) is established and shall have as its principal members the 
Assistant Secretary of Commerce for Environmental Observation and 
Prediction, who shall be Chair of the Committee, and Assistant 
Secretary representatives of DOS, DOD, and DOI. Appointed 
representatives of ODNI and JCS shall participate as supporting 
members to provide independent advice pertaining to their areas of 
expertise. Regardless of the department or agency representative's 
rank and position, such representative shall speak at the ACPRS on 
behalf of his/her department or agency. The ACPRS may invite 
Assistant Secretary level representation of United States Government 
departments or agencies that are not represented in the ACPRS to 
participate in the activities of that Committee when matters of 
interest to such departments or agencies are under consideration.
    (c) Review Board for Private Remote Sensing Space Systems. The 
Board shall have, as its principal members, the Under Secretary of 
commerce for Oceans and Atmosphere, who shall be Chair of the Board, 
and Under Secretary or equivalent representatives of DOS, DOD, and 
DOI. The Director of National Intelligence and Chairman of the Joint 
Chiefs of Staff shall be represented at an appropriate level as 
supporting members to provide independent advice pertaining to their 
areas of expertise. The Board may invite the representatives of 
United States Government departments or agencies that are not 
represented on the Board, to participate in the activities of the 
Board when matters of interest to such departments or agencies are 
under consideration.
    (2) Resolution Procedures.
    (a) If, following the various intra-departmental review 
processes, the principal members of the RSOC do not agree on 
approving a license or on necessary conditions that would allow for 
its approval, then the RSOC shall meet to review the license 
application. The RSOC shall work to resolve differences in the 
recommendations with the goal of approving licenses with the least 
restrictive conditions needed to meet the international obligations, 
foreign policies, or national security concerns of the United 
States. If the issues cannot be resolved, then the Chair of the RSOC 
shall prepare a proposed license that reflects the Committee's views 
as closely as possible, and provide it to the principal members of 
the RSOC for approval. The proposed license prepared by the RSOC 
chair shall contain the conditions determined necessary by DOS or 
DOD. Principal members have 5 working days to object to the proposed 
license and seek a decision at a higher level. In the absence of a 
timely escalation, the license proposed by the RSOC Chair will be 
issued.
    (b) If any of the principal Parties disagrees with the proposed 
license provided by the RSOC Chair, they may escalate the matter to 
the ACPRS for resolution, Principal Parties must escalate the matter 
within 5 working days of such a decision. Escalations must be in 
writing from the principal ACPRS member, and must cite the specific 
national security, foreign policy, or international obligation 
concern. Upon receipt of a request to escalate, DOC will suspend any 
further action on the license action until ACPRS resolution. The 
ACPRS shall meet to review all departments' information and 
recommendations, and shall work to resolve interagency 
disagreements. Following this meeting, the Chair of the ACPRS shall, 
within 11 working days from the date of receiving notice of 
escalation, provide the reviewing departments a proposed license 
that contains the conditions determined by DOS or DOD. Within 5 
working days of receipt of the proposed license, an ACPRS principal 
member may object to the prepared license and seek to escalate the 
matter to the Review Board. In the absence of an escalation within 5 
working days, the license prepared by the ACPRS Chair will be 
issued.
    (c) If any of the principal Parties disagrees with the license 
prepared by the ACPRS Chair, it may escalate the matter to the 
Review Board for resolution. Principal Parties must escalate the 
matter within 5 working days of such a decision. Escalations must be 
in writing from the principal Review Board member, and must cite the 
specific national security, foreign policy, or international 
obligation concern. Upon receipt of a request to escalate, DOC will 
suspend any further action on the license action until Review Board 
resolution. The Review Board shall meet to review information and 
recommendations that are provided by the ACPRS, and such other 
private remote sensing matters as appropriate. The Chair of the 
Board shall provide reviewing departments and agencies a proposed 
license within 11 working days from the date of receiving notice of 
escalation. The proposed license prepared by the Review Board chair 
shall contain the conditions determined necessary by DOS or DOD. If 
no principal Parties object to the proposed license within 5 working 
days, it will be issued.
    (d) If, within 5 working days of receipt of the draft license, a 
principal Party disagrees with any conditions imposed on the 
license, that Party's Secretary will promptly notify the Secretary 
of Commerce and the other principal Parties in writing of such 
disagreement and the reasons therefor, and a copy will be provided 
to the Assistant to the President for National Security Affairs and 
the Assistant to the President for Science and Technology.
    (e) Upon notification of such a disagreement, DOC will suspend 
further action on the license that would be inconsistent with the 
Secretary of State or the Secretary of Defense determination. If the 
Secretary of commerce believes the limits defined by another 
Secretary are inappropriate, then the Secretary of Commerce or 
Deputy Secretary shall consult with his or her counterpart in the 
relevant department within 10 working days regarding unresolved 
issues. If the relevant Secretaries are unable to resolve any 
issues, the Secretary of Commerce will notify the Assistant to the 
President for National Security Affairs, who, in coordination with

[[Page 21300]]

the Assistant to the President for Science and Technology, will seek 
to achieve consensus among departments and agencies, or filing that, 
by referral to the President. All efforts will be taken to resolve 
the dispute within 3 weeks of its submission to the Assistant to the 
President for National Security Affairs and the Assistant to the 
President for Science and Technology.

C. Interagency Dispute Resolution Concerning Other Commercial 
Remote Sensing Matters

    Nothing in this MOU precludes any Party to this MOU from 
addressing through other appropriate channels, consistent with the 
Act and applicable directives, any matter regarding commercial 
remote sensing unrelated to (1) adjudicating remote sensing 
licensing actions, or (2) the interruption of normal commercial 
operations. Such matters may be raised using standard coordination 
processes, including by referral to the Assistant to the President 
for National Security Affairs, who, in coordination with the 
Assistant to the President for Science and Technology, will seek to 
achieve consensus among the departments and agencies, or filing 
that, by referral to the President, when appropriate.

D. Consultation During Review of Interruption of Normal Commercial 
Operations

    (1) This section establishes the process to limit the licensee's 
data collection and/or distribution where necessary to meet 
international obligations or foreign policy interests, as determined 
by the Secretary of State, or during periods of increased concern 
for national security, as determined by the Secretary of Defense in 
consultation with the Director of National Intelligence and the 
Chairman of the Joint Chiefs of Staff. DOC will provide DOS, DOD, 
ODNI, and JCS copies of licensee correspondence and documents that 
describe how the licensee will comply with such interruptions of its 
commercial operations.
    (2) Conditions should be imposed for the smallest area and for 
the shortest period necessary to protect the international 
obligations and foreign policies or national security concerns at 
issue. Alternatives to prohibitions on collection and/or 
distribution shall be considered as ``modified operations,'' such as 
delaying or restricting the transmission or distribution of data, 
restricting disseminated data quality, restricting the field of view 
of the system, obfuscation, encryption of the data, or other means 
to control the use of the data, provided the licensee has provisions 
to implement such measures.
    (3) Except where urgency precludes it, DOS, DOD, DOC, ODNI and 
JCS will consult to attempt to come to an agreement concerning 
appropriate conditions to be imposed on the licensee in accordance 
with determinations made by DOS or DOD. Consultations shall be 
managed so that, in the event an agreement cannot be reached at the 
staff level, sufficient time will remain to allow the Secretary of 
Commerce to consult personally with the Secretary of State, the 
Secretary of Defense, the Director of National Intelligence, or the 
Chairman of the Joint Chiefs of Staff as appropriate, prior to the 
issuance of a determination by the Secretary of State, or the 
Secretary of Defense, in accordance with (4) below. That function 
shall not be delegated below the Secretary or acting Secretary.
    (4) After such consultations, or when the Secretary of State or 
the Secretary of Defense, specifically determines that urgency 
precludes consultation with the Secretary of Commerce, the Secretary 
of State shall determine the conditions necessary to meet 
international obligations and foreign policy concerns, and the 
Secretary of Defense shall determine the conditions necessary to 
meet national security concerns. This function shall not be 
delegated below the Secretary or acting Secretary.
    (5) The Secretary of State or the Secretary of Defense will 
provide to the Secretary of Commerce a determination regarding the 
conditions required to be imposed on the licensees. The 
determination will describe the international obligations, specific 
foreign policy, or national security interest at risk. Upon receipt 
of the determination, DOC shall immediately notify the licensees of 
the imposition of limiting conditions on commercial operations. 
Copies of the determination and any implementing DOC action will be 
provided promptly to the Assistant to the President for National 
Security Affairs and the Assistant to the President for Science and 
Technology.
    (6) If the Secretary of Commerce believes the conditions 
determined by another Secretary are inappropriate, he or she will, 
simultaneous with notification to, and imposition of such conditions 
on, the licensee, so notify the Secretary of State or the Secretary 
of Defense, the Assistant to the President for National Security 
Affairs, and the Assistant to the President for Science and 
Technology. The Assistant to the President for National Security 
Affairs, in coordination with the Assistant to the President for 
Science and Technology, may initiate as soon as possible a 
Principals-level consultative process to achieve a consensus or, 
failing that, refer the matter the President for decision. All 
efforts will be taken to resolve the disagreement within 7 working 
days of its submission to the Assistant to the President for 
National Security Affairs and the Assistant to the President for 
Science and Technology.

E. Coordination Before Release of Information Provided or Generated 
by Other United States Government Departments or Agencies

    Before releasing any information provided or generated by 
another department or agency to a licensee or potential licensee, to 
the public, or to an administrative law judge, the agency proposing 
the release must consult with the agency that provided or generated 
the information. The purpose of such consultations will be to review 
the propriety of any proposed release of information that may be 
privileged or restricted because it is classified, pre-decisional, 
deliberative, proprietary, or protected for other reasons. No 
information shall be released without the approval of the department 
or agency that provided or generated it unless required by law.

F. No Legal Rights

    No legal rights or remedies, or legally enforceable causes of 
action, are created or intended to be created by this MOU.

[FR Doc. 2019-09320 Filed 5-13-19; 8:45 am]
 BILLING CODE 3510-HR-P