Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations 24917

DEPARTMENT OF COMMERCE

National Institute of Standards and

Technology

15 CFR Part 270

[Docket No. 970822201–7202–00]

Procedures for the Evaluation of

Energy-related Inventions; Removal of

Regulations

AGENCY: National Institute of Standards

and Technology, Commerce.

ACTION: Final rule.

SUMMARY: The National Institute of

Standards and Technology (NIST) is

terminating the current NIST program

which evaluated inventions as a service

to the Department of Energy’s (DOE)

Energy-Related Inventions Program

(ERIP). During the twenty-plus years of

the evaluation program’s existence,

NIST transmitted recommendations

based on its evaluations to the

Department of Energy, which used the

recommendations in its decisionmaking for DOE’s award of grants to

inventors and small businesses for

further development of the NISTrecommended inventions.

The Department of Energy will

continue the Energy Related Inventions

Program with a newly designed

evaluation process consistent with a

competitive procurement. The DOE has

renamed ERIP as part of the DOEoperated Inventions and Innovation

Program. DOE will issue a solicitation

for proposals to be evaluated by DOE

under the new program, beginning on

May 1, 1998.

Since DOE will now process

evaluations through a competitive

procurement and since evaluations

made by NIST under 15 CFR part 270

will no longer be used in the award

selection process, there is no function

for the NIST Energy-Related Invention

Evaluation Program to perform, and the

NIST evaluation program is being

terminated.

EFFECTIVE DATE: May 1, 1998.

FOR FURTHER INFORMATION CONTACT: Dr.

Michael E. McCabe at telephone number

(301) 975–5504.

SUPPLEMENTARY INFORMATION: Title 15

part 270 of the Code of Federal

Regulations prescribes procedures for

the evaluation of energy-related

inventions. These procedures were

issued in 1976 to partially implement

section 14 of the Federal Non-nuclear

Energy Research and Development Act

of 1974, Pub. L. 93–577 (codified as

amended at 42 U.S.C. 5901, et seq.

hereinafter referred to as the Act). The

Act established a comprehensive

national program for research and

development of all potentially beneficial

energy sources and utilization

technologies. Section 14 of the Act

directed the National Bureau of

Standards (now the National Institute of

Standards and Technology) to give

particular attention to the evaluation of

all promising energy-related inventions,

especially those submitted by

individual inventors and small

companies for the purpose of obtaining

direct grants from the Administrator of

the Energy Research and Development

Administration which was later

incorporated into the Department of

Energy.

Since 1975 NIST has been providing

the prescribed evaluation services to the

Department of Energy, which has

overall management and budgetary

responsibility for the Energy-Related

Inventions Program (ERIP). NIST has

completed all processing for the 33,430

requests for evaluation which were

received on or before August 2, 1997.

Evaluation was not performed for

requests received after that date.

Of the evaluation requests received on

or before August 2, 1997, 17,482 were

not accepted for evaluation, largely due

to inadequate documentation, obvious

technical flaws in projected invention

operation, or insufficient energy

relation. Of the 15,948 accepted, 14,239

were rejected in a first-stage evaluation,

which included commentary generally

by at least two consultants, usually for

lack of competitive advantage. Of the

1709 remaining (not rejected in the first

stage) 741 were recommended for DOE

support. The continuous multi-stage

evaluation process yielded, on average,

two to three recommendations per

month. For each of the 15,207 cases

which were not recommended, a report

was provided to the inventor

commenting on the technology and

giving reasons why DOE support was

not warranted.

The DOE will continue to evaluate

inventions under its new Inventions and

Innovation Program. DOE has issued a

solicitation for proposals to be evaluated

under the new program beginning on

May 1, 1998.

NIST finds good cause to issue this

rule in final without opportunity for

notice and comment and delayed

effective date because those procedures

are unnecessary pursuant to 5 U.S.C.

553(b)(B) and 5 U.S.C. 553(d)(3), since

the Department of Energy is continuing

the program in its entirety.

Executive Order 12866

It has been determined that this Rule

is ‘‘not significant’’ under section 3(f) of

E.O. 12866.

List of Subjects in 15 CFR Part 270

Energy, Inventions and patents.

Accordingly, under the authority of

15 U.S.C. 271 et seq., part 270 is

removed from Title 15 of the Code of

Federal Regulations.

Dated: April 30, 1998.

Robert E. Hebner,

Acting Deputy Director.

[FR Doc. 98–12043 Filed 5–5–98; 8:45 am]

BILLING CODE 3510–13–M

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

15 CFR Part 911

[Docket No. 970725178–8087–02]

RIN 0648–AK04

Policies and Procedures Regarding

Use of the NOAA Space-Based Data

Collection Systems

AGENCY: National Oceanic and

Atmospheric Administration,

Department of Commerce.

ACTION: Final rule.

SUMMARY: The National Oceanic and

Atmospheric Administration (NOAA) is

issuing a final rule that revises its

policies and procedures for authorizing

the use of its space-based Data

Collection Systems (DCS) which operate

on NOAA’s Geostationary Operational

Environmental Satellites (GOES) and

Polar-orbiting Operational

Environmental Satellites (POES). This

final rule revises the current policy on

the use of the GOES DCS, and

formalizes a new policy for the use of

the Argos Data Collection and Location

System (Argos DCS) which flies on the

POES. The rule harmonizes, as much as

practicable, the system use policies for

the two systems, which in the past have

been disparate. The fundamental

principle underlying this rule is that the

Government will not allow its spacebased DCS to be used where there are

commercial space-based services

available that fulfill users’ requirements.

DATES: Effective June 5, 1998.

ADDRESSES: Send comments on the

collection information to Dane Clark,

NOAA, National Environmental

Satellite, Data, and Information Service,

Direct Services Division (E/SP3), 4700

Silver Hill Road, Stop 9909, Room 3320,
24918 Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations

Washington, DC 20223–9909, and to the

Office of Management and Budget

(OMB) at the Office of Information and

Regulatory Affairs, OMB, Washington,

DC 20503 (Attention: NOAA Desk

Officer).

FOR FURTHER INFORMATION CONTACT:

Dane Clark at (301) 457–5681, e-mail:

satinfo@nesdis.noaa.gov; or Kira

Alvarez at (301) 713–0053, e-mail:

Kira.Alvarez@noaa.gov.

SUPPLEMENTARY INFORMATION: For

general background on NOAA’s Data

Collection Systems (Argos DCS and

GOES DCS), please refer to the notice of

proposed rulemaking published in the

Federal Register on September 9, 1997,

at 62 FR 47388.

In 1996, NOAA recognized that a

commercial industry was starting to

emerge in the area of data collection and

location services (e.g., Mobile Space

Services). Guided by the U.S.

Government’s long-standing policy

against competing with the private

sector, NOAA, in October 8, 1996, (61

FR 52775), announced that it would no

longer promote the use of the Argos DCS

for commercial non-environmental

applications. NOAA, moreover, has

been eager to explore new opportunities

for meeting mission requirements that

are presented by the development of

private space-based DCS. To explore

these opportunities, NOAA initiated a

dialogue among users of the systems

and both public and private sector

service providers by hosting a public

meeting in December 1996. This

meeting brought together more than 100

individuals representing current and

planned space-based data collection

service providers and users to present,

discuss and document pertinent

information necessary to reevaluate and

reexamine government practice and

policy.

As demonstrated at the public

meeting, there are operational and soonto-be operational commercial DCS.

However, the government users of the

current NOAA-provided systems require

an established operational capability

that meets users’ requirements from the

private sector service providers before

contemplating a change away from these

government-provided systems. Based on

the representations, both oral and

written, made at the public meeting, the

commercial providers are currently

unable to provide such a capability to

the vast majority of government users.

Consequently, there is still a need for

the Government to provide a spacebased data collection system for

government use until such a time as the

government’s requirements can be met

by the commercial sector. However,

given the evolving state of the

commercial industry, government users

must take into account the progress and

development of these commercial

systems. As a result, any new system

use policy should be focused on

meeting the requirements of the

government users, while also

encouraging them to canvass the

commercial marketplace on a periodic

basis.

The participants expressed interest in

the issuance of new consolidated

regulations that clarify the system use

policies for the Argos DCS and the

GOES DCS and that build in the

incentive to investigate the

opportunities available from the private

sector. The participants indicated that

new regulations establishing a clear set

of criteria for allowing access to the

government systems would accord them

the predictability and transparency

necessary to make rational business

decisions.

On September 9, 1997, (62 FR 47388),

NOAA published a proposed rule in the

Federal Register. Comments on the

proposed rule were invited through

November 10, 1997. A total of eight

letters of comment on the proposed rule

were received.

Response to Comments

Comment 1: The statements in the

notice of proposed rulemaking that

commercial providers are currently

unable to provide a demonstrated

operational capability to the vast

majority of government users and that

consequently, there is still a need for the

Government to provide a DCS for

government use until such time as the

Government’s requirements can be met

by the commercial sector, are

categorically incorrect.

Response: NOAA has determined that

there is still a need for the Government

to provide a space-based DCS. This

determination was made with the

consultation of a U.S. Government

(USG) users group, which advised

NOAA on the government requirements

for space-based DCS. These government

agencies determined their own current

and future requirements and then

conveyed the same to NOAA. NOAA

and the user group assessed the

commercial alternatives available and

compared them with the existing

government services and determined

that no commercial service currently

available had the requisite demonstrated

operational capability to meet all of the

USG user requirements. Nonetheless,

this rulemaking serves notice that this

situation will not be indefinite and

viable commercial space-based

alternatives may eventually obviate the

need for NOAA to operate its own

space-based DCS.

Comment 2: The 1991 U.S. Space

Policy encouraging U.S. agencies to

promote access to excess U.S. spacebased assets is ‘‘outdated and no longer

applicable.’’

Response: NOAA agrees, and in this

regard, announced in the Federal

Register on October 8, 1996, (61 FR

52775), that it was no longer promoting

commercial use of the Argos System.

Comment 3: A major point of

contention is the degree to which

particular applications are conducted

for environmental protection versus

economic considerations. NOAA must

recognize that certain applications may

serve both purposes. What is the

definition of cost-effectiveness? Full

cost accounting should be used,

including the full cost of providing the

NOAA DCS service. NOAA should not

use user switching costs in this

assessment.

Response: Cost-effectiveness is only a

valid criterion to be considered in the

case of government agencies.

Furthermore, it is the individual agency

that determines what is cost-effective for

their particular agency, as a user of the

system. It is not a valid consideration

for non-governmental entities.

Moreover, for non-governmental

entities, not only must the use be

environmental, but there is the

additional criterion that there must be

government interest in the collection of

the data.

Comment 4: In section 911.1, Purpose,

change the italicized language: ‘‘The

regulations are intended to facilitate the

collection of environmental data as well

as other such data which the

Government is interested in collecting,

while at the same time not

disadvantaging the development of the

commercial space-based services in this

sector.’’ The following is proposed as a

replacement: ‘‘The regulations are

intended to facilitate the collection of

environmental data as well as other

such data which the Government is

interested in collecting, and to allow for

the use of commercial space-based

services where possible while precluding

all direct or indirect government

competition with such services.’’

Response: The proposed change is

inaccurate because it implies that

NOAA has the authority to disallow the

use of commercial services by other

USG agencies. Moreover, NOAA has not

taken any steps to discourage the use of

commercial services. However, the

language will be changed to clarify

NOAA’s position as follows:

‘‘The regulations are intended to

facilitate the collection of
Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations 24919

environmental data as well as other

such data which the Government is

interested in collecting. In those

instances where space-based

commercial systems do not meet users’

requirements, the intent is to not

disadvantage the development of the

commercial space-based services in this

sector.’’

Comment 5: ‘‘The revised regulations

should explicitly state that all nongovernment users of government

spectrum must be licensed by the

Federal Communications Commission

(FCC). This NOAA must include as an

integral part of its review and approval

process for Argos System use

certification that the candidate user of

Argos has met these requirements.’’

Response: While an explicit statement

in the regulations that non-government

users subject to U.S. jurisdiction must

be licensed by the FCC is appropriate,

it would be inconsistent with

Administration regulatory policy to

include a certification requirement

pertaining to FCC license procedures

that essentially duplicates existing

requirements. However, it should be

noted that System Use Agreements will

include an obligation that users must

obtain authorization from the

appropriate national agencies, in the

case of the United States—the FCC, to

transmit on the assigned frequencies

and to comply with all applicable

national telecommunications laws and

regulations.

Comment 6: NOAA should set up a

vetting process similar to the FCC’s,

which includes the publication at

designated intervals, of a Request for

Information in the Commerce Business

Daily, that would include the details of

user requests since the previous notice,

and would allow for timely comment by

commercial providers before the signing

of any agreements.

Response: Requiring the completion

of such an administrative process before

allowing access to the NOAA DCS

would create an unfair burden on

potential users and, in some cases

would interfere with the ability of

certain users to have timely access to

data which may be mission critical.

Under the USG’s current regulatory

reform program, any new regulatory

burdens on the public must be kept to

the minimum necessary to achieve the

stated goal and this proposed

administrative process would clearly be

contrary to this policy.

Comment 7: The scope of the

regulations is too narrow and these

regulations should be applicable

globally. As a result, include in § 911.2,

Scope, the following language:

‘‘regardless of whether an applicant is

subject to the jurisdiction and control of

the United States.’’

Response: This proposed statement

overreaches the territorial jurisdiction of

the United States, and as such is

inappropriate. However, NOAA agrees

with the observation that the Argos DCS

is a global system which should be

operated under a consistent and

uniform set of globally applicable rules.

As a result, the Argos Operations

Committee has adopted these

regulations as part of the governing

rules for the system.

Comment 8: Under which category of

users would international government

users fall?

Response: International government

users would fall under the definition of

government users.

Comment 9: ‘‘Government Interest’’ is

defined too ambiguously.

Response: By necessity, this

definition is broad. It would be

impractical to give the exhaustive list of

the relevant missions of all government

agencies that utilize these data for

operational and research purposes.

Comment 10: The definitions of

‘‘Environmental Data,’’ ‘‘Environmental

Protection Data,’’ and ‘‘Environmental

Measurement Data’’ are too broad. In

addition, the definitions of

‘‘Environmental Measurement Data’’

and ‘‘Environmental Protection Data’’

should include the following statement:

‘‘It is recognized that in many cases,

commercial services may be available

that adequately address user

requirements and that these user needs

may be motivated by reasons in addition

to environmental-related concerns.

Instances of such cases will be viewed

as non-environmental applications for

the purposes of these regulations.’’

Response: These definitions

accurately reflect the environmental

stewardship mission requirements of

the primary USG agencies for which

these systems are operated. And because

these systems are primarily operated for

environmental purposes, these

definitions serve as a primary

justification for use of the system.

However, we do understand the

concerns expressed in the comment,

and that is why NOAA also requires

that, for non-governmental use of the

system, the user show that there is a

government interest in the collection of

the data. We note, though, that the

statement of policy proposed in the

comment is inappropriate in the

definition section of a regulation. Such

a statement, moreover, concerns the use

of the system for cost-effective purposes,

and as we noted in comment 3 above,

except in the case of government

agencies, cost-effectiveness is not an

appropriate consideration for potential

users of the system. We feel that the

operative sections of the regulations

already take into account the concerns

expressed in the commenter’s proposed

statement.

Comment 11: It is unclear what types

of events fall under the definition of

Episodic Use. Please clarify with

examples.

Response: NOAA agrees, and as a

result, examples of such uses have been

added to the final rule. These examples

include: Arctic expeditions and

scientific campaigns into remote areas,

which represent events in which there

is a significant possibility for the loss of

life.

Comment 12: Who decides whether

there are commercial services that meet

the users’ requirements? How will

NOAA validate user requirements?

Response: Users determine whether

there are commercial space-based

services that meet their program’s

requirements. Not only are the users

asked to provide the reasons why they

have determined that they need to use

the Argos System, but they must also

certify that there are no commercial

space-based services which meet their

requirements.

Comment 13: Why was an

explanation of the factors of the users’

requirements that may not be met by

commercial space-based services

included in the preamble, but not in the

actual proposed rule?

Response: NOAA agrees that the

factors should be included in the text of

the rule; as a result, these factors have

now been incorporated into § 911.4(b).

Comment 14: The reduction in nonenvironmental use of the system, while

‘‘well intended, * * * fails to address

the real issue that, in the majority of

cases, non-environmental user

requirements can be met by commercial

providers.’’

Response: We reiterate the fact that

the primary requirement for use of the

system is that there be no commercial

space-based services which meet the

users’ requirements. Only after a user

has determined that fact, and certified to

it, will NOAA apply the other criteria to

determine if they are qualified to use the

system. For non-environmental use of

the system there are only two instances

where use of the system is allowed: (1)

For episodic uses, where there is the

significant possibility of loss of life,

which is consonant with NOAA’s (and

all USG agencies’ inherent) public safety

mission(s); and (2) for government users

and non-profit users where there is a

governmental interest. For government

users there may be instances where the

use of commercial services is not
24920 Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations

appropriate due to the sensitive nature

of the applications (such as for national

security or law enforcement purposes);

however, this is a determination made

by the individual agency, not NOAA.

As we have stated previously, NOAA

will monitor the commercial sector to

determine whether they are developing

and implementing the necessary

capabilities. We encourage service

providers to continue to interact with

NOAA and keep us informed of their

progress. We are committed to

facilitating government-industry

interface and dialogue. In fact we are

already aware of several government

agencies that are testing and using

commercial space-based services.

Comment 15: All agreements for nongovernmental, non-environmental use

should be terminated upon publication

of a final rule and no new nongovernmental, non-environmental use

agreements should be signed from this

point forward.

Response: NOAA cannot arbitrarily

terminate all non-governmental, nonenvironmental agreements upon

publication of the final rule. However,

we have stated previously that such

agreements will not be renewed and

will terminate upon expiration. We have

also stated previously that no new nongovernmental, non-environmental

agreements will be approved, with the

exception of those for episodic use,

which are consonant with our public

safety mission.

Comment 16: Section 911.7(a) should

be amended; the following language

should be included at the end:

‘‘However, the existence of viable

commercial space-based alternatives

may eventually obviate the need for

NOAA to operate its own satellite-based

DCS.’’

Response: NOAA agrees that it must

convey a strong signal that it is

determined not to compete with viable

commercial providers of space-based

DCS services. NOAA has incorporated

the suggested language, with a slight

modification; § 911.7(a) now reads:

‘‘NOAA expects to continue to operate

DCS on its geostationary and polarorbiting satellites, subject to the

availability of future appropriations.

However, viable commercial spacebased alternatives may eventually

obviate the need for NOAA to operate

its own space-based DCS.’’

Comment 17: What is the reasoning

behind limiting non-environment users

to 5 percent of the terminals in use for

the Argos DCS. With the expected

decline in users, the non-environment

users will continually need to remove

terminals from the system. What will be

the selection process in removing those

terminals (which users will be

impacted)? the existing limit has never

created a problem for the operation of

the system.

Response: NOAA established these

systems to further its environmental

stewardship responsibilities. Moreover,

the radio spectrum frequencies within

which these systems operate are

allocated primarily for environmental

use. Thus by strictly limiting the

nonenvironmental use of the system to

5 percent of total system use, the

integrity of the use of the allocated

frequencies is maintained, while also

accomplishing the additional goal of not

competing unfairly with the private

sector.

In accordance with this rule, current

non-governmental, non-episodic, nonenvironmental agreements will not be

renewed. Terminals operating under

expired agreements should be

deactivated at the end of the current

agreement. Since any remaining nonenvironmental uses of the system will

only be approved for one year terms,

this will allow for an orderly decrease

in the non-environmental use of the

system.

Comment 18: There is concern that

the statement: ‘‘The fundamental

principle underlying these regulations is

that the Government will not allow its

space-based DCS to be used where there

are commercial services available that

fulfill the users’ requirements’’,

indicates not only that users will have

to convert to commercial services when/

where available, but also an eventual

retreat by the Government from

providing a data collection service

without a definite discussion of how

and when that would happen.

Response: Government user

requirements will continue to dictate

which instruments fly on government

assets. Moreover, it is inappropriate for

the Government to compete unfairly

with the private sector. At this point in

time, NOAA, in consultation with

government users, has determined that

there are no commercial providers of

space-based services that can meet the

government’s needs, and so the

Government will continue to operate its

own systems. While this rulemaking

serves notice that this situation will not

be indefinite, it is impossible given the

state of development in the commercial

marketplace to determine with any

accuracy when or how the full

transition to the private sector will take

place. When such a transition is

warranted, NOAA will provide, to the

maximum extent practicable, advance

notice to the affected users to allow for

an orderly transition.’’

Comment 19: We believe that

canvassing the market every 3–5 years is

not enough. Also, what level of

diligence does this require?

Response: NOAA has decreased the

duration of the System Use Agreements

in order to create a forcing function to

make the users periodically reassess

their requirements and their options for

meeting them. This creates a dynamic

process wherein applications and

renewals have varying durations for 6

months to 5 years, and are received on

a continuing basis. Hence, the

canvassing of the commercial

marketplace will take place on a

continuing basis.

For existing users of the system, the

following outlines the schedule for

transitioning to new system use

agreements:

1. Government and non-profit,

environmental users of the Argos DCS

shall be required to submit a new

system use agreement within 3 years

from the effective date of this rule or

upon expiration of their current system

use agreement, whichever occurs first;

2. Government, non-profit, and nongovernment, environmental users of the

GOES DCS shall be required to submit

a new system use agreement within 5

years from the effective date of this rule,

or upon expiration of their current

system use agreement, whichever occurs

first;

3. Government and non-profit, nonenvironmental users of the Argos DCS

shall be required to submit a new

system use agreement within 1 year

from the effective date of this rule or

upon expiration of their current system

use agreement, whichever occurs first;

4. Non-government, environmental

users of the Argos DCS shall be required

to submit a new system use agreement

within 1 year from the effective date of

this rule, or upon expiration of their

current agreement, whichever comes

first; and

5. Non-government, nonenvironmental users of the Argos DCS

will be required to submit new system

use agreements within 1 year from the

effective date of this rule, or upon

expiration of their current agreement,

whichever comes first.

Please note, however, that submission

of a new system use agreement does not

imply acceptance of such an agreement,

especially for non-governmental, nonenvironmental uses.

As to the level of diligence, NOAA

requires a certification for each user that

the use of the NOAA DCS is required

because there are no commercial spacebased services that meet its program

requirements.
Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations 24921

Comment 20: There needs to be

further detail provided on what the

‘‘platform compatibility’’ factor is and

how it is determined.

Response: NOAA agrees that this term

should be defined. The ‘‘platform

compatibility’’ factor addresses the

compatibility of the platform with the

space segment of the system and

includes elements such as message

length and composition, signal strength,

as well as transmission protocol (e.g.,

continuous versus event driven).

Comment 21: These proposed rules do

not support the needs of small

businesses, the commercialization of

space, the needs of the environmental

users and the Government’s

requirements to allow access to

underutilized assets of the Government

to non-governmental users.

Response: As noted in the notice of

proposed rulemaking, NOAA had

previously made the excess capacity of

its DCS available to non-NOAA users.

This was consistent with the National

Space Policy then in effect, which

encouraged government agencies to

promote commercial access to excess

U.S.C. space-based assets in order to

promote the growth of the emerging U.S.

commercial space industry. However,

by 1996, NOAA recognized that a

commercial industry was staring to

emerge in the area of space-based data

collection and location services. Given

the U.S. Government’s long-standing

policy against competing with the

private sector, NOAA undertook a

reassessment of its role in this market

sector. This reassessment eventually led

to those new regulations.

Changes from the Proposed Rule

For a description of the proposed rule,

see 62 FR 47388. The following seven

changes have been made to the text of

the proposed rule in response to

comments.

In § 911.1, language was added to

clarify the intent of these regulations.

The definition of ‘‘episode use’’ in

§ 911.3, was clarified with further

examples.

The definition of ‘‘government use’’ in

§ 911.3 was clarified, and now specifies

that government approval is necessary

in advance.

The definition of ‘‘government user’’

in § 911.3 was clarified to specify that

international government users are

included.

A definition of ‘‘platform

compatibility’’ was added to § 911.3.

Section 911.4(b)(2) was added, which

lists the factors that help users

determine when commercial spacebased services meet their requirements,

was included. This list was included in

the preamble of the notice of proposed

rulemaking, but not in the actual rule.

A statement was added at the end of

§ 911.&(a) which qualifies the first

sentence and states that while NOAA

expects to continue to operate a DCS, in

the future, the existence of viable

commercial space-based systems may

eventually obviate this need.

Additional Technical Changes to the

Proposed Rule

A definition of ‘‘Director’’ was added

to § 911.3, which defines the term as the

Director of the Office of Satellite Data

Processing and Distribution of the

National Environmental Satellite, Data,

and Information Service.

The term ‘‘space-based’’ was included

in § 911.4(b) to modify the term

‘‘commercial services’’ to clarify the fact

that NOAA will be looking at whether

other space-based alternatives to the use

of the NOAA DCS are available. This

allows the comparison between systems

to be a more accurate ‘‘apples to apples’’

comparison.

The requirements of former § 911.4(d)

have now been incorporated into

§ 911.4(c). These sections were

rearranged after some consideration,

because the new arrangement leads to a

more logical flow and makes the

regulatory scheme easier to understand.

The section previously classified as

§ 911.4(c)(4), and which is now

classified as § 911.4(c)(5), was revised to

specify that the experimental use

provisions applied to both NOAA DCS

services. The name of this category was

also changed from ‘‘experimental use’’

to ‘‘testing use’’ to better reflect the

nature of the use; this change was also

made in §§ 911.4(d)(5) and 911.5(e)(2).

Section 911.5(a)(2) was added, which

directs persons who are interested in

using the NOAA DCS to contact the

Director.

A language change in § 911.5(b)(3)

reflects that it is not by choice, but

rather by necessity that a user requires

access to the NOAA DCS.

Section 911.5(d)(5) was added; this is

a conforming change that was necessary

in order to reflect that the experimental

use of the Argos System is also allowed.

As a result, it was necessary to indicate

the length of time of approval of

agreements for this category of use of

the system.

Appendix B was added to map out the

system use policy for the GOES DCS

and has been included to help users

understand how the regulations apply to

that system.

Classification

A. Regulatory Flexibility Act (5 U.S.C.

601 et seq.)

The Assistant General Counsel for

Legislation and Regulation of the

Department of Commerce certified to

the Chief Counsel for Advocacy of the

Small Business Administration that the

proposed rule, if adopted, would not

have a significant economic impact on

a substantial number of small entities.

No comments were received regarding

this certification. As such, no final

regulatory flexibility analysis has been

prepared.

B. Paperwork Reduction Act of 1995 (35

U.S.C. 3500 et. seq.)

This rule contains collection-ofinformation requirements subject to the

Paperwork Reduction Act (PRA). The

collection of this information has been

approved by OMB Control Number

0648–0157.

Notwithstanding any other provision

of the law, no person is required to

respond to, nor shall any person be

subject to a penalty for failure to comply

with a collection of information, subject

to the requirements of the PRA, unless

that collection of information displays a

currently valid OMB control number.

Public reporting burden for this

collection of information is estimated to

average 3 hours per GOES agreement

and 30 minutes per Argos agreement,

including the time for reviewing

instructions, searching existing data

sources, gathering and maintaining the

data needed, and completing and

reviewing the collection of information.

Send comments regarding this

collection of information to Dane Clark,

NOAA, National Environmental

Satellite, Data, and Information Service,

Direct Services Division (E/SP3), 4700

Silver Hill Road, Stop 9909, Room 3320,

Washington, DC. 20233–9909, and to

OMB at the Office of Information and

Regulatory Affairs, Washington, DC

20503 (Attention: NOAA Desk Officer).

C. National Environmental Policy Act

(42 U.S.C. 4321 et seq.)

Publication of the final regulations

does not constitute a major Federal

action significantly affecting the quality

of the human environment. Therefore,

an environmental impact statement is

not required.

D. Executive Order 12866

This rule has been determined to be

not significant for purposes of E.O.

12866.
24922 Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations

List of Subjects in 15 CFR part 911

Scientific equipment, Space

transportation and exploration.

Dated: April 28, 1998.

Robert S. Winokur,

Assistant Administrator for Satellite and

Information Services.

Accordingly, for the reasons set forth

above part 911 of Title 15 of the Code

of Federal Regulations is revised to read

as follows:

PART 911—POLICIES AND

PROCEDURES CONCERNING USE OF

THE NOAA SPACE-BASED DATA

COLLECTION SYSTEMS

Sec.

911.1 Purpose.

911.2 Scope.

911.3 Definitions.

911.4 Use of the NOAA Data Collection

Systems.

911.5 NOAA Data Collection Systems Use

Agreements.

911.6 Treatment of data.

911.7 Continuation of the NOAA Data

Collection Systems.

911.8 Technical requirements.

Appendix A to Part 911—Argos DCS Use

Policy Diagram

Appendix B to Part 911—GOES DCS Use

Policy Diagram

Authority: 15 U.S.C. 313, 49 U.S.C. 44720;

15 U.S.C. 1525; 7 U.S.C. 450b; 5 U.S.C. 552.

§ 911.1 Purpose.

These regulations set forth the

procedural, informational and technical

requirements for use of the NOAA Data

Collection Systems (DCS). In addition,

they establish the criteria NOAA will

employ when making determinations as

to whether to authorize the use of its

space-based DCS. The regulations are

intended to facilitate the collection of

environmental data as well as other

such data which the Government is

interested in collecting. In those

instances where space-based

commercial systems do not meet users’

requirements, the intent is to not

disadvantage the development of the

commercial space-based services in this

sector. Obtaining a system use

agreement to operate data collection

platforms pursuant to these regulations

does not affect related licensing

requirements of other Federal agencies

such as the Federal Communications

Commission.

§ 911.2 Scope.

(a) These regulations apply to any

person subject to the jurisdiction or

control of the United States who

operates or proposes to operate data

collection platforms to be used with the

NOAA DCS either directly or through an

affiliate or subsidiary. For the purposes

of these regulations a person is subject

to the jurisdiction or control of the

United States if such person is:

(1) An individual who is a U.S.

citizen; or

(2) A corporation, partnership,

association, or other entity organized or

existing under the laws of any state,

territory, or possession of the United

States.

(b) These regulations apply to all

existing Geostationary Operational

Environmental Satellite (GOES) and

Argos DCS users as well as all future

applications for NOAA DCS use.

§ 911.3 Definitions.

For purposes of this part:

(a) Approving authority means NOAA

for the GOES DCS; and it means the

Argos Participating Agencies, via the

Argos Operations Committee, for the

Argos DCS.

(b) Argos DCS means the system

which collects data from fixed and

moving platforms and provides platform

location data. This system consists of

platforms, the Argos French instrument

on the Polar-orbiting Operational

Environmental Satellites (POES) and

other international satellites; a ground

processing system; and telemetry

ground stations.

(c) Argos participating agencies

means those agencies of the United

States and other countries that

participate in the management of the

Argos DCS.

(d) Assistant Administrator means the

Assistant Administrator for Satellite and

Information Services, NOAA, or his/her

designee.

(e) Director means the Director of the

Office of Satellite Data Processing and

Distribution for the National

Environmental Satellite, Data, and

Information Service of NOAA.

(f) Environmental data means

environmental measurement data for the

purpose of using the GOES DCS; and it

means environmental measurement and

environmental protection data for the

purpose of using the Argos DCS.

(g) Environmental measurement data

means data that relate to the

characteristics of the Earth and its

natural phenomena by helping to better

understand, evaluate, or monitor its

natural resources.

(h) Environmental protection data

means data that relate to the

characteristics of the Earth and its

environment (including its ecosystems

and the species which inhabit them) by

helping to protect against any

unreasonable adverse effects thereto.

(i) Episodic use means the use of the

system for short events where there is a

significant possibility of loss of life,

such as for Arctic expeditions or

scientific campaigns into remote areas.

(j) Government interest means that the

use is determined in advance to be of

interest to one or more governmental

entities of the United States, France or,

once they have become an Argos

Participating Agency, Japan or a

European Organization for the

Exploitation of Meteorological Satellites

(EUMETSAT) member state; or also, in

the case of the GOES DCS, a state or

local government.

(k) Government user means agencies

of international governmental

organizations, national government or

any subdivision thereof, or any of those

agencies’ contractors or grantees, so long

as the contractor is using the data

collected by the NOAA DCS to fulfill its

contractual obligations to the

government agency or in the case of a

grantee that these data are being used in

accordance with the statement of work

for the award.

(l) NOAA DCS means the GOES and

Argos space-based DCS.

(m) Non-profit user means a not-forprofit academic, research, or other nongovernmental organization, which is

using these data, for education and/or

scientific, non-commercial purposes.

(n) Operational use means the use of

data in a situation where the utility of

the data are significantly reduced if not

collected or delivered in a specific time

window. This includes situations where

extensive preparation work is in place

and a delay in acquisition of data would

jeopardize the project.

(o) Platform compatibility means the

compatibility of the platform with the

space segment of the system, and

includes elements such as message

length and composition, signal strength,

and transmission protocol (e.g.,

continuous versus event drive).

(p) Testing use means the use of the

NOAA DCS by manufacturers of

platforms for use in conjunction with

the NOAA DCS by manufacturers of

platforms for use in conjunction with

the NOAA DCS, for the limited purpose

of testing and certifying the

compatibility of new platforms with the

technical requirements of the NOAA

DCS.

(q) User means the entity and/or

organization which owns or operates

user platforms for the purpose of

collecting and transmitting data through

the NOAA DCS.

(r) User platform means devices,

designed in accordance with the

specifications delineated and approved

by the Approving Authority, used for

the in-situ collection and subsequent

transmission of data via the NOAA DCS.

Those devices which are used in

conjunction with the GOES DCS are
Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations 24923

referred to as data collection platforms

(DCP) and those which are used in

conjunction with the Argos DCS are

referred to as Platform Transmitter

Terminals (PTT). For purposes of these

regulations, the terms ‘‘user platform,’’

‘‘DCP’’ and ‘‘PTT’’ are interchangeable.

(s) User requirement means the

requirement expressed and explained in

the System Use Agreement.

§ 811.4 Use of the NOAA Data Collection

Systems.

(a) Use of the NOAA DCS will only

be authorized in accordance with the

conditions and requirements set forth in

paragraphs (b), (c), (d), (e), and (f) of this

section.

(b)(1) Use of the NOAA DCS will only

be authorized where it is determined

that there are no commercial spacebased services available that meet the

user’s requirements.

(2) A determination under paragraph

(b)(1) of this section must be based on

such factors as satellite coverage,

accuracy, data throughput, platform

power consumption, size and weight,

service continuity and reliability,

platform compatibility, system access

mode, and, in the case of government

agencies, cost-effectiveness.

(c)(1) Except as provided in

paragraphs (c)(2), (3), (4), and (5) of this

section, NOAA DCS shall only be used

for the collection of environmental data

by governmental and/or non-profit

users.

(2) Non-governmental, environmental

use of the NOAA DCS is only

authorized where there is a Government

interest in the collection and/or receipt

of the data.

(3) Except as provided in paragraph

(c)(4) of this section, non-environmental

use of the Argos DCS is only authorized

for government use and non-profit users

where there is a government interest.

Non-environmental use of the system

shall not exceed five percent of the

system’s total use.

(4) Episodic use of the Argos DCS may

also be authorized in specific instances

when there is a significant possibility

for loss of life. Such use shall be closely

monitored.

(5) Testing use of the NOAA DCS will

only be authorized for manufacturers of

NOAA DCS platforms, that require

access to the system in order to test and

certify prototype and production

models.

(d) Because of capacity limitations on

the GOES DCS, system applicants will

be admitted to use the GOES system in

accordance with the following priority:

(1) NOAA programs or users whose

data are required for implementation of

NOAA programs, as determined by the

Assistant Administrator, will be

accorded first priority.

(2) Users whose data are desired to

support NOAA programs will be

accorded second priority.

(3) Users whose data and/or use of the

GOES DCS will further a program of an

agency or department of the U.S.

Government, other than NOAA, will be

accorded third priority.

(4) Users whose data are required by

a state or local Government of the

United States will be accorded fourth

priority.

(5) Testing users of the system will be

accorded fifth priority.

(6) No other usage will be authorized

for the GOES DCS.

(e) In the event that Argos DCS

capacity limitations require that priority

determinations be made, priority will be

given to those platforms that provide

environmental data of broad

international interest, especially of an

operational nature, and to those

requiring the unique capabilities of the

Argos DCS, such as platform location or

polar coverage.

§ 911.5 NOAA Data Collection Systems

Use Agreements.

(a)(1) In order to use a NOAA DCS,

each user must have an agreement with

the approving authority for that system.

(2) Persons interested in entering into

a system use agreement should contact

the Director.

(b) These agreements will address, but

may not be limited to, the following

matters:

(1) The period of time the agreement

is valid and procedures for its

termination,

(2) The authorized use(s), and its

priorities for use,

(3) The extent of the availability of

commercial space-based services which

meet the user’s requirements and the

reasons for necessitating the use of the

Government system,

(4) Any applicable government

interest in the data,

(5) Required equipment standards,

(6) Standards of operation,

(7) Conformance with applicable ITU

and FCC agreements and regulations,

(8) Reporting time and frequencies,

(9) Data formats,

(10) Data delivery systems and

schedules, and

(11) User-borne costs.

(c) The Director shall evaluate user

requests and conclude agreements for

use of the NOAA DCS.

(d)(1) Agreements for the collection,

via the Argos DCS, of environmental

data by government agencies or nonprofit institutions shall be valid for 3

years from the date of initial in-situ

deployment of the platforms, and may

be renewed for additional 3-year

periods.

(2) Agreements for the collection of

environmental data, via the Argos DCS,

by non-government users shall be valid

for 1 year from the date of initial in-situ

deployment of the platforms, and may

be renewed for additional 1-year

periods, but only for so long as there

exists a governmental interest in the

receipt of these data.

(3) Agreements for the collection of

non-environmental data, via the Argos

DCS, by government agencies, or nonprofit institutions where there is a

government interest, shall be valid for 1

year from the date of initial in-situ

deployment of the platforms, and may

be renewed for additional 1-year

periods.

(4) Agreements for the episodic

collection of non-environmental data,

via the Argos DCS under § 911.4(c)(4),

shall be of short, finite duration not to

exceed 1 year without exception, and

usually shall not exceed 6 months.

These agreements shall be closely

monitored and shall not be renewed.

(5) Agreements for the testing use of

the Argos DCS by equipment

manufacturers shall be valid for 1 year

from the date of initial testing, and may

be renewed for additional 1-year

periods.

(e)(1) Agreements for the collection of

data, by the GOES DCS, shall be valid

for 5 years from the date of initial in-situ

deployment, and may be renewed for

additional 5-year periods.

(2) Agreements for the testing use of

the GOES DCS, by equipment

manufacturers, shall be valid for 1 year

from the date of initial testing, and may

be renewed for additional 1-year

periods.

911.6 Treatment of Data.

(a) All NOAA DCS users must agree

to permit NOAA and other agencies of

the U.S. Government the full, open and

timely use of all data collected from

their platforms; this may include the

international distribution of

environmental data under the auspices

of the World Meteorological

Organization. Any proprietary data will

be protected in accordance with

applicable laws.

§ 911.7 Continuation of the NOAA Data

Collection Systems.

(a) NOAA expects to continue to

operate DCS on its geostationary and

polar-orbiting satellites, subject to the

availability of future appropriations.

However, viable commercial spacebased alternatives may eventually
24924 Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations

obviate the need for NOAA to operate

its own space-based DCS.

(b) If use of the system in support of

NOAA programs increases, it eventually

may be necessary to the further restrict

system usage by other users. If such

restrictions on use become necessary, or

in the event that NOAA discontinues

operation of GOES and/or POES, NOAA

will provide, to the maximum extent

practicable, advance notice and an

orderly transition.

(c) NOAA will not be responsible for

any losses resulting from the

nonavailability of the NOAA DCS.

§ 911.8 Technical requirements.

(a) All platform operators of the

NOAA DCS must use a data collection

platform radio set whose technical and

design characteristics are certified to

conform to applicable specifications and

regulations.

(b) All platform operators are

responsible for all costs associated with

the procurement and operation of the

platforms, and for the acquisition of

data from those platforms, either

directly from the satellite or from the

applicable data processing center.

BILLING CODE 3510–12–M
Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations 24925

Appendix A to Part 911—Argos DCS Use Policy Diagram
24926 Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations

Appendix B to Part 911—GOES DCS Use Policy Diagram
Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations 24927

[FR Doc. 98–11970 Filed 5–5–98; 8:45 am]

BILLING CODE 3510–12–C

SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

RIN 0960–AE74

Federal Old-Age, Survivors, and

Disability Insurance Benefits;

Supplemental Security Income for the

Aged, Blind, and Disabled;

Organization and Procedures;

Application of Circuit Court Law

AGENCY: Social Security Administration

(SSA).

ACTION: Final rules.

SUMMARY: These final regulations revise

the current regulations governing how

we apply holdings of the United States

Courts of Appeals (circuit courts) that

we determine conflict with our

interpretation of the Social Security Act

or regulations in adjudicating claims

under title II and title XVI of the Social

Security Act (the Act). The regulations

explain the new goal we have adopted

to ensure that Acquiescence Rulings

(ARs) are developed and issued

promptly and the new procedures we

are implementing to identify claims

pending in the administrative review

process that might be affected by ARs.

EFFECTIVE DATES: These amendments are

effective June 5, 1998.

FOR FURTHER INFORMATION CONTACT: Gary

Sargent, Litigation Staff, Social Security

Administration, 6401 Security

Boulevard, Baltimore, MD 21235, (410)

965–1695 for information about these

rules. For information on eligibility or

claiming benefits, call our national toll

free number, 1–800–772–1213.

SUPPLEMENTARY INFORMATION: On

January 11, 1990, (55 FR 1012) we

published final regulations, set out at 20

CFR 404.985 and 416.1485, to

implement a revised policy explaining

how we apply circuit court holdings

that we determine conflict with our

interpretation of the Act or regulations

to subsequent claims within that circuit

involving the same issue. Under those

regulations, we prepare ARs which

explain the circuit court holdings and

provide instructions to adjudicators, at

all levels of the administrative review

process, on how to apply the circuit

court’s holding to subsequent claims

within the circuit involving the same

issue. Those regulations reflected the

agency’s decision in 1985 to abandon its

prior policy of applying circuit court

holdings that we determined conflicted

with our interpretation of the Act or

regulations only to the named party or

parties to the decision, rather than to

other cases pending in the

administrative review process involving

the same issue or issues.

On July 2, 1996, we issued Social

Security Ruling (SSR) 96–1p (61 FR

34470) clarifying and reaffirming the

rules established in the 1990

regulations. Since that time, we have

reviewed our rules and our

implementing procedures to determine

what changes could be instituted to

further improve the acquiescence

process. Based upon that review, on

September 18, 1997, we published at 62

FR 48963, proposed revisions to the

acquiescence regulations, which we are

now publishing as final rules.

The proposed rules provided the

addition of new paragraphs

404.985(b)(1) and 416.1485(b)(1) to

establish a general goal for issuing ARs

no later than 120 days from the date of

our receipt of a precedential circuit

court decision. The proposed rules also

provided, by the addition of new

paragraphs 404.985(b)(3) and

416.1485(b)(3), for new procedures to

identify claims pending within SSA

which may be affected by an AR that

may subsequently be issued. These

same sections also provided that, once

an AR is issued, we will send notices to

those individuals whose claims have

been identified as potentially being

affected by the AR informing them of

their right to request a readjudication, as

described in paragraphs 404.985(b)(2)

and 416.1485(b)(2) of the rules.

The Final Rules

The Role of Litigation in the

Policymaking Process

Our review indicated that it is

important to reaffirm the principle that

our goal in administering our programs

is to have uniform, national program

standards. Our procedures, which

provide for acquiescence within the

circuit when a circuit court issues a

precedential decision containing a

holding that we determine conflicts

with our interpretation of the Act or

regulations, result in differing rules in

different sections of the country. This

situation is not desirable and ordinarily

should not, if possible, continue

indefinitely.

Therefore, we wish to make it clear

that generally ARs are temporary

measures. When we receive a

precedential circuit court decision

containing a holding that we determine

conflicts with our interpretation of the

Act or regulations, we consider whether

the rules at issue should be changed on

a nationwide basis to conform to the

court’s holding. If we continue to

believe that our interpretation of the

statute or regulations at issue is correct

and we seek further judicial review of

the circuit court’s decision, we will stay

further development of the AR until the

judicial review process runs its course.

If our assessment shows that we should

change our rules and adopt a circuit

court’s holding nationwide, we will, at

the time we publish the AR, have

determined the steps necessary to do so.

This may require changing our

regulations or rulings; it may also

require seeking a clarifying legislative

change to the Act. We would then

proceed to issue an AR because

changing our nationwide rules through

legislation or rulemaking may require a

significant period of time.

Similarly, if our assessment shows

that our rules represent a reasonable

interpretation of the Act or regulations,

but we are unable to resolve the matter

by seeking further judicial review, we

will issue an AR and at the time we

publish the AR have determined the

appropriate steps to attempt to address

the issue which was the subject of the

circuit court’s holding. This may mean

issuing clarifying regulations or seeking

legislation. There are certain instances

when an issue cannot be resolved, such

as a constitutional issue which the

Supreme Court chooses not to review or

legislation is required but not enacted

and, therefore, an AR may remain in

effect.

Although our goal to have uniform

national standards is implicit in the

current regulations, we are including in

this preamble an explicit statement of

our commitment to maintaining a

uniform nationwide system of rules. In

addition to making minor editorial

corrections to the current regulations,

these rules amend the regulations in two

substantive areas, as follow:

Establishing a Timeliness Goal for

Issuing ARs

A common criticism regarding the

acquiescence process has involved the

length of time it has taken for us to

prepare and issue an AR. As a result, we

have reassessed our procedures and

have decided to place in our regulations

our goal to release an AR for publication

in the Federal Register no later than 120

days from the time we receive a

precedential circuit court decision for

which the AR is being issued, unless

further judicial review of that decision

is pending. This timeframe will also not

apply when publication of an AR

requires such coordination with the

Department of Justice and/or other

Federal agencies that it becomes no

longer feasible. We are adding new