Appendix D to Part 960 - Memorandum of Understanding
15:3.1.2.4.19.5.17.3.48 : Appendix D
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 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
the Assistant to the President for Science and Technology, will
seek to achieve consensus among departments and agencies, or
failing 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 failing
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.