15 CFR § 960.10 - Additional standard and temporary license conditions for Tier 3 systems.

§ 960.10 Additional standard and temporary license conditions for Tier 3 systems.

(a) If the Secretary has categorized the system as Tier 3 under § 960.6, the license shall specify that the licensee shall comply with the conditions listed in § 960.8 and further shall comply with the following conditions until the Secretary notifies the licensee that the system belongs in a lower-numbered tier for which the following conditions are not required:

(1) Comply with limited-operations directives issued by the Secretary, in accordance with a determination made 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 dissemination during periods of increased concerns for national security and where necessary to meet international obligations or foreign policy interests; and:

(i) Be able to comply with limited-operations directives at all times. This includes:

(A) The ability to implement National Institute of Standards and Technology-approved encryption, in accordance with the manufacturer's security policy, 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 for transmissions throughout the system of the data specified in the limited-operations directive; and

(B) Implementing measures, consistent with industry best practice for entities of similar size and business operations, that prevent unauthorized access to the system and identify any unauthorized access in the event of a limited-operations directive;

(ii) Provide and continually update the Secretary with a point of contact and an alternate point of contact for limited-operations directives; and

(iii) During any such limited-operations directive, permit the Secretary to immediately access any component of the system for the purpose of ensuring compliance with the limited-operations directive, the Act, this part, and the license.

(2) Conduct resolved imaging of other artificial resident space objects (ARSO) orbiting the Earth only with the written consent of the registered owner of the ARSO to be imaged and with notification to the Secretary at least five days prior to imaging, or as may otherwise be provided in a temporary license condition developed under paragraphs (b) and (c) of this section. For purposes of this paragraph (a)(2), “resolved imaging” means the imaging of another ARSO that results in data depicting the ARSO with a resolution of 3 x 3 pixels or greater.

(3) Comply with any temporary license conditions developed in accordance with paragraphs (b) and (c) of this section until their specified expiration date, including any extensions of the expiration date.

(b) To determine whether additional temporary license conditions are necessary, the Secretary shall notify the Secretaries of Defense and State of any system categorized as Tier 3 under § 960.6. The Secretaries of Defense and State shall determine whether any temporary license conditions are necessary (in addition to the standard license conditions in § 960.8) to meet national security concerns or international obligations and policies of the United States regarding that system. Within 21 days of receiving the notification, the Secretary of Defense or State shall notify the Secretary of any such conditions and the length of time such conditions should remain in place, which shall not exceed one year from the earlier of either when the licensee first delivers unenhanced data suitable for evaluating the system's capabilities to the Secretary (under reasonable terms and conditions or other mutually agreed arrangement with the Secretary of Defense or State), or when the Secretary of Defense or State first obtains comparably suitable data from another source, unless the length of such condition is extended in accordance with paragraph (e) of this section.

(c) The Secretary shall review the notification from the Secretary of Defense or State under paragraph (b) of this section and aim to craft the least restrictive temporary license condition(s) possible, before the expiration of the 60-day application review period under § 960.7(b). In crafting such conditions the Secretary shall consult, as appropriate, with the Secretaries of Defense and State and the applicant or licensee, to determine whether the proposed condition would be consistent with applicable laws. In making this determination, the Secretary shall consider whether:

(1) The risk addressed by the proposed condition is specific and compelling;

(2) The proposed condition would be effective against the risk;

(3) The proposed condition addresses only the data proposed to be collected that are not available from any domestic or foreign source;

(4) The U.S. Government cannot currently mitigate the risk without the proposed condition;

(5) The U.S. Government cannot address the risk by some less restrictive means than the proposed condition; and

(6) The applicant or licensee can mitigate the risk by taking alternative action.

(d) When considering the factors under paragraphs (c)(1) through (6) of this section, the Secretary shall accept as final the determinations made by the Secretary of Defense or State as appropriate, in such Secretary's notification to the Secretary of the need for such conditions. If the Secretary determines that a condition proposed by the Secretary of Defense or State would be consistent with applicable law, the Secretary shall include such condition in the license, absent any elevation of a dispute under paragraph (f) of this section.

(e) The Secretary will notify the Secretaries of Defense and State 90 days before the expiration of a temporary condition imposed under this section. If, within 30 days after such notification, either the Secretary of Defense or State notifies the Secretary that an extension is needed, the Secretary shall consult with the Secretary of Defense or State about the ongoing need for the temporary condition. The Secretary may extend the expiration date of the temporary condition for a maximum of one year, and may extend the condition no more than two times unless requested by the Secretary of Defense or State. The authority to request such additional extensions shall not be delegated by the Secretary of Defense or State. Therefore, absent a request specifically from the Secretary of Defense or State, any temporary condition may exist for no more than a total of three years. The Secretary shall grant an extension if the Secretary determines that:

(1) The Secretary requesting the extension has shown that the considerations in paragraph (c) of this section justify an extension; and

(2) The Secretary has notified the affected licensee no less than 60 days before the expiration of the temporary condition that an extension is being sought.

(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.